Federal Register Vol. 81, No.251,

Federal Register Volume 81, Issue 251 (December 30, 2016)

Page Range96329-97110
FR Document

81_FR_251
Current View
Page and SubjectPDF
81 FR 97099 - Adjustments of Certain Rates of PayPDF
81 FR 96337 - Providing an Order of Succession Within the Social Security AdministrationPDF
81 FR 96335 - Providing an Order of Succession Within the National Endowment for the ArtsPDF
81 FR 96333 - Providing an Order of Succession Within the Federal Mediation and Conciliation ServicePDF
81 FR 96329 - Providing an Order of Succession Within the Department of LaborPDF
81 FR 96331 - Designation of Officers of the National Archives and Records Administration to Act as Archivist of the United StatesPDF
81 FR 96526 - Sunshine Act Meeting NoticePDF
81 FR 96451 - Environmental Impact Statements; Notice of AvailabilityPDF
81 FR 96444 - Information Collection Requirement; Defense Federal Acquisition Regulation Supplement, Contract FinancingPDF
81 FR 96459 - Electronic Filing of Certain Import Data Into the Document Image System Through the Automated Commercial EnvironmentPDF
81 FR 96443 - Information Collection Requirement; Defense Federal Acquisition Regulation Supplement, Contract PricingPDF
81 FR 96450 - Proposed Settlement Agreement, Clean Air Act Citizen SuitPDF
81 FR 96481 - Notice of Application for Withdrawal and Opportunity for Public Meeting; WashingtonPDF
81 FR 96445 - Information Collection Requirement; Defense Federal Acquisition Regulation Supplement, Foreign AcquisitionPDF
81 FR 96484 - Notice of Availability of the Record of Decision for the Moab Master Leasing Plan/Approved Resource Management Plan Amendments for the Moab and Monticello Field Offices, UTPDF
81 FR 96457 - Proposed Data Collection Submitted for Public Comment and RecommendationsPDF
81 FR 96456 - Proposed Data Collection Submitted for Public Comment and RecommendationsPDF
81 FR 96454 - Proposed Data Collection Submitted for Public Comment and RecommendationsPDF
81 FR 96461 - Proposed Data Collection Submitted for Public Comment and RecommendationsPDF
81 FR 96485 - Notice of Availability of the Final Environmental Impact Report/Final Environmental Impact Statement, Bay Delta Conservation Plan/California WaterFixPDF
81 FR 96404 - Use of the Term “Healthy” in the Labeling of Human Food Products; Request for Information and Comments; Extension of Comment PeriodPDF
81 FR 96462 - Agency Information Collection Activities; Proposed Collection; Comment Request; Food Labeling RegulationsPDF
81 FR 96441 - Procurement List; DeletionsPDF
81 FR 96565 - In the Matter of the Amendment of the Designation of Lashkar-e-Tayyiba (and Other Aliases) as a Foreign Terrorist Organization Pursuant to Section 219 of the Immigration and Nationality ActPDF
81 FR 96435 - Welded ASTM A-312 Stainless Steel Pipe From the Republic of Korea: Preliminary Results of Antidumping Duty Administrative Review; 2014-2015PDF
81 FR 96446 - Agency Information Collection Activities; Comment Request; Mandatory Civil Rights Data CollectionPDF
81 FR 96476 - Guidelines for Implementing the Indian Child Welfare ActPDF
81 FR 96477 - Indian Gaming; Tribal-State Class III Gaming Compacts Taking Effect in the State of New MexicoPDF
81 FR 96477 - Notice of Intent To Prepare an Environmental Impact Statement for the Tule River Tribe's Proposed Fee-to-Trust and Eagle Mountain Casino Relocation Project, Tulare County, CaliforniaPDF
81 FR 96453 - Information Collection Being Submitted for Review and Approval to the Office of Management and BudgetPDF
81 FR 96442 - Procurement List; Proposed Additions and DeletionsPDF
81 FR 96523 - Southern Nuclear Operating Company, Inc., Vogtle Electric Generating Plant, Units 3 and 4; Tier 1 Editorial and Consistency ChangesPDF
81 FR 96434 - Solid Urea From the Russian Federation and Ukraine: Final Results of Sunset Reviews and Revocation of Antidumping Duty OrdersPDF
81 FR 96433 - Solid Urea From the Russian Federation: Rescission of Antidumping Duty Administrative Review; 2015-2016PDF
81 FR 96440 - BroadbandUSA Webinar SeriesPDF
81 FR 96440 - Submission for OMB Review; Comment RequestPDF
81 FR 96524 - Southern Nuclear Operating Company, Inc.; Vogtle Electric Generating Plant, Units 3 and 4; Consolidation of Uninterruptible Power Supply System Spare Battery Terminal BoxesPDF
81 FR 96452 - Information Collection Being Reviewed by the Federal Communications CommissionPDF
81 FR 96451 - Information Collections Being Reviewed by the Federal Communications Commission Under Delegated AuthorityPDF
81 FR 96415 - Petitions for Reconsideration of Action in Rulemaking ProceedingPDF
81 FR 96568 - Submission for OMB Review; Comment RequestPDF
81 FR 96521 - BJS Confidentiality Pledge Revision NoticePDF
81 FR 96437 - Fisheries Off West Coast States; Pacific Coast Groundfish Fishery; Application for an Exempted Fishing Permit (EFP)PDF
81 FR 96565 - Agency Information Collection Activities; Renewal of an Approved Information Collection: Financial Responsibility-Motor Carriers, Freight Forwarders, and BrokersPDF
81 FR 96473 - Endangered and Threatened Wildlife and Plants; Permit ApplicationsPDF
81 FR 96475 - Endangered and Threatened Wildlife and Plants; Incidental Take Permit Application; Proposed Low-Effect Habitat Conservation Plan and Associated Documents; San Diego Gas and Electric, San Diego, Riverside, and Orange Counties, CaliforniaPDF
81 FR 96519 - Agency Information Collection Activities; Proposed eCollection eComments Requested; A Newly Approved Data Collection National Use-of-Force Data CollectionPDF
81 FR 96483 - Notice of Public Meetings: Sierra Front-Northwestern Great Basin Resource Advisory Council, NevadaPDF
81 FR 96362 - Airworthiness Directives; Safran Helicopter Engines, S.A. (Formerly Turbomeca S.A.) Turboshaft EnginesPDF
81 FR 96471 - Endangered and Threatened Wildlife and Plants; Incidental Take Permit Application; Proposed Low-Effect Habitat Conservation Plan and Associated Documents; City of Monterey Park, CaliforniaPDF
81 FR 96361 - Airworthiness Directives; The Boeing Company AirplanesPDF
81 FR 96433 - Submission for OMB Review; Comment RequestPDF
81 FR 96518 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Extension Without Change, of a Previously Approved Collection Procedures for the Administration of Section 5 of the Voting Rights Act of 1965PDF
81 FR 96469 - National Institutes of Health Statement of Organization, Functions, and Delegations of AuthorityPDF
81 FR 96537 - Northern Lights Fund Trust IV and Blue Sky Asset Management, LLC; Notice of ApplicationPDF
81 FR 96539 - Self-Regulatory Organizations; NYSE Arca, Inc.; Order Granting Approval of a Proposed Rule Change, as Modified by Amendment Nos. 1, 2, and 3 Thereto, To List and Trade Shares of the JPMorgan Diversified Event Driven ETF Under NYSE Arca Equities Rule 8.600PDF
81 FR 96530 - Self-Regulatory Organizations; Financial Industry Regulatory Authority, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Eliminate Fees for Historical Trade Data Accessed Through the FINRA ADDS Web SitePDF
81 FR 96527 - Self-Regulatory Organizations; NASDAQ BX, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change to Amend the Exchange's Transaction Fees at Rule 7019 (Market Data Distributor Fees)PDF
81 FR 96534 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Amending NYSE Arca Equities Rules 7.11, 7.31, and 7.34PDF
81 FR 96545 - Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing of Proposed Rule Change To Shorten the Settlement Cycle From T+3 to T+2PDF
81 FR 96532 - Self-Regulatory Organizations; International Securities Exchange, LLC; Notice of Filing of Proposed Rule Change to Amend the Supplementary Material to ISE Rule 1901PDF
81 FR 96550 - Self-Regulatory Organizations; Miami International Securities Exchange LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Its Fee Schedule To Modify the Exchange's Other Market Participant Transaction FeesPDF
81 FR 96552 - Self-Regulatory Organizations; National Stock Exchange, Inc.; Notice of Filing of Proposed Rule Change in Connection With the Proposed Acquisition of the Exchange by NYSE Group, Inc.PDF
81 FR 96527 - Product Change-First-Class Package Service Negotiated Service AgreementPDF
81 FR 96526 - Product Change-Priority Mail Negotiated Service AgreementPDF
81 FR 96526 - Product Change-Priority Mail Express and Priority Mail Negotiated Service AgreementPDF
81 FR 96366 - Orthopedic Devices; Reclassification of Pedicle Screw Systems, Henceforth To Be Known as Thoracolumbosacral Pedicle Screw Systems, Including Semi-Rigid SystemsPDF
81 FR 96467 - Medical Device Accessories-Describing Accessories and Classification Pathway for New Accessory Types; Guidance for Industry and Food and Drug Administration Staff; AvailabilityPDF
81 FR 96447 - Rubicon NYP Corp; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
81 FR 96449 - Albany Green Energy, LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
81 FR 96448 - Florida Gas Transmission Company, LLC; Notice of Request Under Blanket AuthorizationPDF
81 FR 96448 - Combined Notice of Filings #2PDF
81 FR 96449 - Combined Notice of Filings #1PDF
81 FR 96447 - Central Kentucky Transmission Company; Notice of FilingPDF
81 FR 96507 - United States v. Clear Channel Outdoor Holdings, Inc., et al.; Proposed Final Judgment and Competitive Impact StatementPDF
81 FR 96486 - United States v. AMC Entertainment Holdings, Inc., et al.; Proposed Final Judgment and Competitive Impact StatementPDF
81 FR 96566 - Proposed Collection; Comment RequestPDF
81 FR 96381 - Revision to the Near-road NO2PDF
81 FR 96413 - Reconsideration of Finding That Greenhouse Gas Emissions From Aircraft Cause or Contribute to Air Pollution That May Reasonably Be Anticipated To Endanger Public Health and WelfarePDF
81 FR 96478 - Notice of Amended Proposed Withdrawal, Release of Draft Environmental Impact Statement, and Notice of Public Meetings; Idaho, Montana, Nevada, Oregon, Utah, and WyomingPDF
81 FR 96405 - Novus International, Inc.; Filing of Food Additive Petition (Animal Use); Reopening of the Comment PeriodPDF
81 FR 96364 - Food Labeling; Nutrition Labeling of Standard Menu Items in Restaurants and Similar Retail Food Establishments; Extension of Compliance DatePDF
81 FR 96344 - Update To Incorporate FOIA Improvement Act of 2016 RequirementsPDF
81 FR 96415 - Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Russian River Estuary Management ActivitiesPDF
81 FR 96406 - Withholding on Payments of Certain Gambling WinningsPDF
81 FR 96374 - Information Returns; Winnings From Bingo, Keno, and Slot MachinesPDF
81 FR 96353 - Industrial and Commercial MetalsPDF
81 FR 96342 - Pistachios Grown in California, Arizona, and New Mexico; Decreased Assessment RatePDF
81 FR 96380 - Liberty Island Safety Zone; Fireworks Display in Captain of the Port New York ZonePDF
81 FR 96388 - Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Dolphin and Wahoo Fishery Off the Atlantic States; Regulatory Amendment 1PDF
81 FR 96347 - Increase in the Maximum Amount of Primary Nuclear Liability InsurancePDF
81 FR 96339 - Fees for Official Inspection and Official Weighing Services Under the United States Grain Standards Act (USGSA)PDF
81 FR 96469 - Federal Property Suitable as Facilities To Assist the HomelessPDF
81 FR 96349 - Inflation Adjustment of Civil Monetary PenaltiesPDF
81 FR 96391 - Fast-Start Pricing in Markets Operated by Regional Transmission Organizations and Independent System OperatorsPDF
81 FR 97046 - National Emission Standards for Hazardous Air Pollutants for Chemical Recovery Combustion Sources at Kraft, Soda, Sulfite, and Stand-Alone Semichemical Pulp MillsPDF
81 FR 96572 - Revision of Airworthiness Standards for Normal, Utility, Acrobatic, and Commuter Category AirplanesPDF
81 FR 96704 - Position Limits for DerivativesPDF
81 FR 96992 - Revision of Import and Export Requirements for Controlled Substances, Listed Chemicals, and Tableting and Encapsulating Machines, Including Changes To Implement the International Trade Data System (ITDS); Revision of Reporting Requirements for Domestic Transactions in Listed Chemicals and Tableting and Encapsulating Machines; and Technical AmendmentsPDF

Issue

81 251 Friday, December 30, 2016 Contents Agency Toxic Agency for Toxic Substances and Disease Registry NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 96454-96456 2016-31738 Agricultural Marketing Agricultural Marketing Service RULES Decreased Assessment Rates: Pistachios Grown in California, Arizona, and New Mexico, 96342-96344 2016-31532 Agriculture Agriculture Department See

Agricultural Marketing Service

See

Grain Inspection, Packers and Stockyards Administration

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 96433 2016-31692
Antitrust Division Antitrust Division NOTICES Proposed Final Judgments and Competitive Impact Statements: United States v. AMC Entertainment Holdings, Inc., et al., 96486-96507 2016-31652 United States v. Clear Channel Outdoor Holdings, Inc., et al., 96507-96518 2016-31653 Centers Disease Centers for Disease Control and Prevention NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 96456-96459, 96461-96462 2016-31737 2016-31739 2016-31740 Electronic Filing of Certain Import Data into the Document Image System through the Automated Commercial Environment, 96459-96460 2016-31750 Coast Guard Coast Guard RULES Safety Zones: Fireworks Display in Captain of the Port New York Zone, Liberty Island, NY, 96380-96381 2016-31531 Commerce Commerce Department See

International Trade Administration

See

National Oceanic and Atmospheric Administration

See

National Telecommunications and Information Administration

Committee for Purchase Committee for Purchase From People Who Are Blind or Severely Disabled NOTICES Procurement List; Additions and Deletions, 96441-96443 2016-31721 2016-31732 Commodity Futures Commodity Futures Trading Commission PROPOSED RULES Position Limits for Derivatives, 96704-96990 2016-29483 Comptroller Comptroller of the Currency RULES Industrial and Commercial Metals, 96353-96361 2016-31572 Defense Acquisition Defense Acquisition Regulations System NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Contract Financing, 96444-96445 2016-31757 Defense Federal Acquisition Regulation Supplement, Contract Pricing, 96443-96444 2016-31749 Defense Federal Acquisition Regulation Supplement, Foreign Acquisition, 96445-96446 2016-31744 Defense Department Defense Department See

Defense Acquisition Regulations System

Drug Drug Enforcement Administration RULES Import and Export Requirements: Controlled Substances, Listed Chemicals, and Tableting and Encapsulating Machines, etc., 96992-97044 2016-28966 Education Department Education Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Mandatory Civil Rights Data Collection, 96446-96447 2016-31727 Energy Department Energy Department See

Federal Energy Regulatory Commission

RULES Inflation Adjustment of Civil Monetary Penalties, 96349-96353 2016-31035
Environmental Protection Environmental Protection Agency RULES Near-road NO2 Minimum Monitoring Requirements, 96381-96388 2016-31645 PROPOSED RULES National Emission Standards: Hazardous Air Pollutants for Chemical Recovery Combustion Sources at Kraft, Soda, Sulfite, and Stand-Alone Semichemical Pulp Mills, 97046-97095 2016-30758 Reconsideration of Finding that Greenhouse Gas Emissions from Aircraft Cause or Contribute to Air Pollution that May Reasonably Be Anticipated to Endanger Public Health and Welfare, 96413-96415 2016-31644 NOTICES Environmental Impact Statements; Availability, etc., 96451 2016-31758 Proposed Settlement Agreements: Clean Air Act Citizen Suit, 96450-96451 2016-31748 Federal Aviation Federal Aviation Administration RULES Airworthiness Directives: Safran Helicopter Engines, S.A. (formerly Turbomeca S.A.) Turboshaft Engines, 96362-96364 2016-31695 The Boeing Co. Airplanes, 96361-96362 2016-31693 Revision of Airworthiness Standards for Normal, Utility, Acrobatic, and Commuter Category Airplanes, 96572-96701 2016-30246 Federal Communications Federal Communications Commission PROPOSED RULES Petitions for Reconsideration of Action in Rulemaking Proceeding, 2016-31708 96415 2016-31709 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 96451-96454 2016-31710 2016-31711 2016-31722 Federal Energy Federal Energy Regulatory Commission PROPOSED RULES Fast-Start Pricing in Markets Operated by Regional Transmission Organizations and Independent System Operators, 96391-96404 2016-30971 NOTICES Combined Filings, 96448-96450 2016-31657 2016-31658 Filings: Central Kentucky Transmission Co., 96447 2016-31656 Initial Market-Based Rate Filings Including Requests for Blanket Section 204 Authorizations: Albany Green Energy, LLC, 96449 2016-31660 Rubicon NYP Corp, 96447 2016-31661 Requests under Blanket Authorizations: Florida Gas Transmission Company, LLC, 96448 2016-31659 Federal Motor Federal Motor Carrier Safety Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Financial Responsibility—Motor Carriers, Freight Forwarders, and Brokers, 96565-96566 2016-31701 Fish Fish and Wildlife Service NOTICES Endangered Species: Permit Applications, 96473-96474 2016-31700 Incidental Take Permit Applications: Proposed Low-Effect Habitat Conservation Plan and Associated Documents; City of Monterey Park, CA, 96471-96473 2016-31694 Proposed Low-Effect Habitat Conservation Plan and Associated Documents; San Diego Gas and Electric, San Diego, Riverside, and Orange Counties, CA, 96475-96476 2016-31698 Food and Drug Food and Drug Administration RULES Food Labeling: Nutrition Labeling of Standard Menu Items in Restaurants and Similar Retail Food Establishments, 96364-96366 2016-31597 Medical Devices: Orthopedic Devices; Reclassification of Pedicle Screw Systems, Henceforth to be known as Thoracolumbosacral Pedicle Screw Systems, including Semi-Rigid Systems, 96366-96374 2016-31670 PROPOSED RULES Food Additive Petitions: Novus International, Inc., 96405-96406 2016-31606 Use of the Term Healthy in the Labeling of Human Food Products, 96404-96405 2016-31734 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Food Labeling Regulations, 96462-96467 2016-31733 Guidance: Medical Device Accessories—Describing Accessories and Classification Pathway for New Accessory Types, 96467-96469 2016-31669 Grain Inspection Grain Inspection, Packers and Stockyards Administration RULES Fees for Official Inspection and Official Weighing Services under the United States Grain Standards Act, 96339-96342 2016-31350 Health and Human Health and Human Services Department See

Agency for Toxic Substances and Disease Registry

See

Centers for Disease Control and Prevention

See

Food and Drug Administration

See

National Institutes of Health

Homeland Homeland Security Department See

Coast Guard

Housing Housing and Urban Development Department NOTICES Federal Properties Suitable as Facilities to Assist the Homeless, 96469-96471 2016-31334 Indian Affairs Indian Affairs Bureau NOTICES Environmental Impact Statements; Availability, etc.: Tule River Tribe's Proposed Fee-to-Trust and Eagle Mountain Casino Relocation Project, Tulare County, CA, 96477-96478 2016-31724 Guidelines: Implementing the Indian Child Welfare Act, 96476-96477 2016-31726 Indian Gaming: Tribal-State Class III Gaming Compacts Taking Effect in the State of New Mexico, 96477 2016-31725 Interior Interior Department See

Fish and Wildlife Service

See

Indian Affairs Bureau

See

Land Management Bureau

See

Reclamation Bureau

Internal Revenue Internal Revenue Service RULES Information Returns; Winnings from Bingo, Keno, and Slot Machines, 96374-96380 2016-31575 PROPOSED RULES Withholding on Payments of Certain Gambling Winnings, 96406-96413 2016-31579 International Trade Adm International Trade Administration NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Solid Urea from the Russian Federation, 96433-96434 2016-31718 Solid Urea From the Russian Federation and Ukraine, 96434-96435 2016-31719 Welded ASTM A-312 Stainless Steel Pipe from the Republic of Korea; Administrative Review; 2014-2015, 96435-96437 2016-31728 Justice Department Justice Department See

Antitrust Division

See

Drug Enforcement Administration

See

Justice Programs Office

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: National Use-of-Force Data Collection, 96519-96521 2016-31697 Procedures for the Administration of Section 5 of the Voting Rights Act of 1965, 96518-96519 2016-31691
Justice Programs Justice Programs Office NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Bureau of Justice Statistics Confidentiality Pledge Revision, 96521-96523 2016-31705 Land Land Management Bureau NOTICES Applications for Withdrawal of Public Lands: Washington; Opportunity for Public Meeting, 96481-96483 2016-31746 Environmental Impact Statements; Availability, etc.: Amended Proposed Withdrawal and Notice of Public Meetings; Idaho, Montana, Nevada, Oregon, Utah, and Wyoming, 96478-96481 2016-31629 Meetings: Sierra Front-Northwestern Great Basin Resource Advisory Council, NV, 96483-96484 2016-31696 Records of Decision: Moab Master Leasing Plan/Approved Resource Management Plan Amendments for the Moab and Monticello Field Offices, Utah, 96484 2016-31743 National Institute National Institutes of Health NOTICES Statement of Organization, Functions, and Delegations of Authority, 96469 2016-31687 National Oceanic National Oceanic and Atmospheric Administration RULES Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic: Dolphin and Wahoo Fishery off the Atlantic States; Regulatory Amendment 1, 96388-96390 2016-31463 PROPOSED RULES Takes of Marine Mammals: Incidental to Russian River Estuary Management Activities, 96415-96432 2016-31592 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 96440 2016-31716 Fisheries Off West Coast States: Pacific Coast Groundfish Fishery; Exempted Fishing Permit Application, 96437-96439 2016-31704 National Telecommunications National Telecommunications and Information Administration NOTICES Meetings: BroadbandUSA Webinar Series, 96440-96441 2016-31717 Nuclear Regulatory Nuclear Regulatory Commission RULES Increase in the Maximum Amount of Primary Nuclear Liability Insurance, 96347-96349 2016-31368 Update to Incorporate FOIA Improvement Act of 2016 Requirements, 96344-96347 2016-31595 NOTICES Exemptions and Combined License Amendments: Southern Nuclear Operating Company, Inc.; Consolidation of Uninterruptible Power Supply System Spare Battery Terminal Boxes; Vogtle Electric Generating Plant, Units 3 and 4, 96524-96526 2016-31714 Southern Nuclear Operating Company, Inc.; Tier 1 Editorial and Consistency Changes; Vogtle Electric Generating Plant, Units 3 and 4, 96523-96524 2016-31720 Meetings; Sunshine Act, 96526 2016-31785 Postal Service Postal Service NOTICES Product Changes: First-Class Package Service Negotiated Service Agreement, 96527 2016-31674 Priority Mail Express and Priority Mail Negotiated Service Agreement, 96526 2016-31671 Priority Mail Negotiated Service Agreement, 96526 2016-31672 2016-31673 Presidential Documents Presidential Documents EXECUTIVE ORDERS Government Agencies and Employees: Department of Labor; Providing an Order of Succession (EO 13755), 96329-96330 2016-31792 Rates of Pay; Adjustment (EO 13756), 97097-97110 2016-31875 ADMINISTRATIVE ORDERS Government Agencies and Employees: Federal Mediation and Conciliation Service; Providing an Order of Succession (Memorandum of December 23, 2016), 96333-96334 2016-31798 National Archives and Records Administration; Designation of Officers to Act as Archivist of the United States (Memorandum of December 23, 2016), 96331-96332 2016-31788 National Endowment for the Arts; Providing an Order of Succession (Memorandum of December 23, 2016), 96335-96336 2016-31801 Social Security Administration; Providing an Order of Succession (Memorandum of December 23, 2016), 96337-96338 2016-31811 Reclamation Reclamation Bureau NOTICES Environmental Impact Statements; Availability, etc.: Bay Delta Conservation Plan/California WaterFix, 96485-96486 2016-31735 Securities Securities and Exchange Commission NOTICES Applications: Northern Lights Fund Trust IV and Blue Sky Asset Management, LLC, 96537-96539 2016-31684 Self-Regulatory Organizations; Proposed Rule Changes: Financial Industry Regulatory Authority, Inc., 96530-96532 2016-31682 International Securities Exchange, LLC, 96532-96534 2016-31678 Miami International Securities Exchange LLC, 96550-96552 2016-31677 NASDAQ BX, Inc., 96527-96530 2016-31681 National Stock Exchange, Inc., 96552-96565 2016-31676 NYSE Arca, Inc., 96534-96537, 96539-96545 2016-31680 2016-31683 The NASDAQ Stock Market LLC, 96545-96550 2016-31679 State Department State Department NOTICES Designations as Foreign Terrorist Organizations: Lashkar-e-Tayyiba (and Other Aliases), 96565 2016-31730 Transportation Department Transportation Department See

Federal Aviation Administration

See

Federal Motor Carrier Safety Administration

Treasury Treasury Department See

Comptroller of the Currency

See

Internal Revenue Service

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 96566-96569 2016-31651 2016-31707
Separate Parts In This Issue Part II Transportation Department, Federal Aviation Administration, 96572-96701 2016-30246 Part III Commodity Futures Trading Commission, 96704-96990 2016-29483 Part IV Justice Department, Drug Enforcement Administration, 96992-97044 2016-28966 Part V Environmental Protection Agency, 97046-97095 2016-30758 Part VI Presidential Documents, 97097-97110 2016-31875 Reader Aids

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81 251 Friday, December 30, 2016 Rules and Regulations DEPARTMENT OF AGRICULTURE Grain Inspection, Packers and Stockyards Administration 7 CFR Part 800 Fees for Official Inspection and Official Weighing Services Under the United States Grain Standards Act (USGSA) AGENCY:

Grain Inspection, Packers and Stockyards Administration, USDA.

ACTION:

Final rule.

SUMMARY:

The Department of Agriculture (USDA) Grain Inspection, Packers and Stockyards Administration (GIPSA) is announcing the fee schedule for official inspection and weighing services performed under the United States Grain Standards Act (USGSA), as amended, in order to comply with amendments to the USGSA made by the Agriculture Reauthorizations Act of 2015. The USGSA provides GIPSA with the authority to charge and collect reasonable fees to cover the costs of performing official services and the costs associated with managing the program. This action publishes the annual review of fees in Schedule A and the resulting fees that will be effective January 1, 2017.

DATES:

Effective January 1, 2017.

FOR FURTHER INFORMATION CONTACT:

Denise Ruggles, USDA-GIPSA-FGIS-ODA; Telephone: (816) 659-8406; Email: [email protected]

SUPPLEMENTARY INFORMATION:

USGSA authorizes the Secretary of Agriculture to provide official grain inspection and weighing services and to charge and collect reasonable fees for performing these services. The fees collected are to cover, as nearly as practicable, GIPSA's costs for performing these services, including associated administrative and supervisory costs. The fees are in the regulations at 7 CFR 800.71.

On July 29, 2016, GIPSA published in the Federal Register (81 FR 49855) a final rule amending 7 CFR 800.71 in accordance with the Reauthorizations Act of 2015, which required GIPSA to calculate fees assessed on tonnage based on the 5-year rolling average of export tonnage volume (§ 800.71) and adjust all Schedule A fees annually to maintain a 3 to 6 month operating reserve for inspection and supervision services (§ 800.71).

GIPSA has conducted the annual review of the fees and operating reserve for the purposes of the annual adjustment of the fees. Accordingly, GIPSA is setting new tonnage fees which will take effect on January 1, 2017, for all field offices. GIPSA has determined that a 5 percent reduction in all Schedule A fees, including the aforementioned tonnage fees, is necessary to attain the goal of 41/2 months of operating reserve.

Fee Calculations

The regulations require GIPSA annually review the national tonnage fees, local tonnage fees, and fees for service. After calculating the tonnage fees according to the regulatory formula in section 800.71(b)(1), GIPSA then reviews the amount of funds in the operating reserve at the end of the fiscal year (FY2016 in this case) to ensure that it has 41/2 months of operating expenses as required by section 800.71(b)(2) of the regulations. If the operating reserve has more, or less than 41/2 months of operating expenses, then GIPSA must adjust all Schedule A fees. For each $1,000,000, rounded down, that the operating reserve varies from the target of 41/2 months, GIPSA will adjust all Schedule A fees by 2 percent. If the operating reserve exceeds the target, all Schedule A fees will be reduced. If the operating reserve does not meet target, all Schedule A fees will be increased. The maximum annual increase or decrease in fees is 5 percent (§ 800.71(b)(2)(i)-(ii)).

(a) Tonnage fees for the 5-year rolling average tonnage were calculated on the previous 5 fiscal years 2012, 2013, 2014, 2015, and 2016. Tonnage fees consist of the national tonnage fee and local tonnage fee and are calculated and rounded to the nearest $0.001 per metric ton. The tonnage fees are calculated as following:

(1) National tonnage fee. The national tonnage fee is the national program administrative costs for the previous fiscal year divided by the average yearly tons of export grain officially inspected and/or weighed by delegated States and designated agencies, excluding land carrier shipments to Canada and Mexico, and outbound grain officially inspected and/or weighed by FGIS during the previous 5 fiscal years.

ER30DE16.038 Fiscal year Metric tons 2012 * 95,290,621 2013 * 81,207,695 2014 117,560,767 2015 118,758,937 2016 122,330,979 5-year Rolling Average 107,029,800 * To provide uniformity in the 5-year Rolling Average calculation, fiscal years 2012 and 2013 include tons of export grain officially inspected and/or weighed by delegated States and designated agencies prior to the implementation of the fee assessment in the Federal Register (78 FR 22151), effective May 1, 2013.

The national program administrative costs for fiscal year 2016 were $7,214,466. The fiscal year 2017 national tonnage fee, prior to the operating reserve review, is calculated to be at $0.067 per metric ton.

(2) Local tonnage fee. The local tonnage fee is the field office administrative costs for the previous fiscal year divided by the average yearly tons of outbound grain officially inspected and/or weighed by the field office during the previous 5 fiscal years.

ER30DE16.039

The field offices fiscal year tons for the previous 5 fiscal years and calculated 5-year rolling average are as follows:

Field office FY 2012 FY 2013 FY 2014 FY 2015 FY 2016 5-year rolling average New Orleans 49,507,254 42,399,760 62,862,914 65,244,517 66,077,535 57,218,396 League City 7,638,261 10,418,686 12,623,510 12,474,343 12,581,236 11,147,207 Portland 5,739,021 3,953,500 6,065,934 4,111,533 4,645,754 4,903,148 Toledo 1,276,334 1,329,718 1,802,339 2,484,604 2,030,506 1,784,700

The local field office administrative costs for fiscal year 2016 and the fiscal year 2017 calculated local field office tonnage fee, prior to the operating reserve review, are as follows:

Field office FY 2016 local administrative costs Calculated FY 2017 local
  • tonnage fee
  • New Orleans $2,179,027 $0.038 League City 1,380,064 0.124 Portland 417,349 0.085 Toledo 426,863 0.239

    (3) Operating reserve. In order to maintain an operating reserve not less than 3 and not more than 6 months, GIPSA reviewed the value of the operating reserve at the end of FY2016 to ensure that an operating reserve of 41/2 months is maintained.

    The program operating reserve at the end of fiscal year 2016 was $18,863,026 with a monthly operating expense of $3,295,937. The target of 4.5 months of operating reserve is $14,831,717 therefore the operating reserve is greater than 4.5 times the monthly operating expenses by $4,031,311. For each $1,000,000, rounded down, above the target level, all Schedule A fees must be reduced by 2 percent. The operating reserve is $4 million above the target level resulting in a calculated 8 percent reduction. As required by 800.71(b)(2)(ii), the reduction is limited to 5 percent. Therefore, GIPSA is reducing all Schedule A fees for service in Schedule A in paragraph (a)(1) by the maximum 5 percent. All Schedule A fees for service are rounded to the nearest $0.10, except for fees based on tonnage or hundredweight.

    List of Subjects in 7 CFR Part 800

    Administrative practice and procedure, Exports, Grains, Reporting and recordkeeping requirements.

    For the reasons set out in the preamble, GIPSA amends 7 CFR part 800 as follows:

    PART 800—GENERAL REGULATIONS 1. The authority citation for part 800 continues to read as follows: Authority:

    7 U.S.C. 71-87k.

    2. Section 800.71(a)(1) is amended by revising Tables 1, 2, and 3 of Schedule A to read as follows:
    § 800.71 Fees assessed by the Service.

    (a) * * *

    (1) * * *

    Table 1 of Schedule A—Fees for Official Services Performed at an Applicant's Facility in an Onsite FGIS Laboratory 1 Monday to
  • Friday
  • (6 a.m. to
  • 6 p.m.)
  • Monday to
  • Friday
  • (6 p.m. to
  • 6 a.m.)
  • Saturday,
  • Sunday, and
  • overtime 2
  • Holidays
    (i) Inspection and Weighing Services Hourly Rates (per service representative): 1-year contract ($ per hour) $38.20 $40.00 $45.80 $67.80 Noncontract ($ per hour) 67.80 67.80 67.80 67.80 (ii) Additional Tests (cost per test, assessed in addition to the hourly rate): 3 (A) Aflatoxin (rapid test kit method) 10.80 (B) Aflatoxin (rapid test kit method-applicant provides kit) 4 8.90 (C) All other Mycotoxins (rapid test kit method) 19.80 (D) All other Mycotoxins (rapid test kit method-applicant provides kit) 4 17.90 (E) NIR or NMR Analysis (protein, oil, starch, etc.) 2.60 (F) Waxy corn (per test) 2.60 (G) Fees for other tests not listed above will be based on the lowest noncontract hourly rate (H) Other services (1) Class Y Weighing (per carrier): (i) Truck/container 0.70 (ii) Railcar 1.60 (iii) Barge 2.90 (iii) Tonnage Fee (assessed in addition to all other applicable fees, only one tonnage fee will be assessed when inspection and weighing services are performed on the same carrier): (A) All outbound carriers serviced by the specific Field Office (per-metric ton): (1) League City 0.182 (2) New Orleans 0.100 (3) Portland 0.145 (4) Toledo 0.291 (5) Delegated States 5 0.064 (6) Designated Agencies 5 0.064 1 Fees apply to original inspection and weighing, re-inspection, and appeal inspection service and include, but are not limited to, sampling, grading, weighing, prior to loading stowage examinations, and certifying results performed within 25 miles of an employee's assigned duty station. Travel and related expenses will be charged for service outside 25 miles as found in § 800.72(a). 2 Overtime rates will be assessed for all hours in excess of 8 consecutive hours that result from an applicant scheduling or requesting service beyond 8 hours, or if requests for additional shifts exceed existing staffing. 3 Appeal and re-inspection services will be assessed the same fee as the original inspection service. 4 Applicant must provide the test kit, instrument hardware, calibration control, and all supplies required by the test kit manufacturer. 5 Tonnage fee is assessed on export grain inspected and/or weighed, excluding land carrier shipments to Canada and Mexico.
    Table 2 of Schedule A—Services Performed at Other Than an Applicant's Facility in an FGIS Laboratory 1 2 (i) Original Inspection and Weighing (Class X) Services: (A) Sampling only (use hourly rates from Table 1 of this section): (B) Stationary lots (sampling, grade/factor, & check loading): (1) Truck/trailer/container (per carrier) $21.40 (2) Railcar (per carrier) 31.60 (3) Barge (per carrier) 198.60 (4) Sacked grain (per hour per service representative plus an administrative fee per hundredweight) (CWT) 0.08 (C) Lots sampled online during loading (sampling charge under (1)(i) of this table, plus): (1) Truck/trailer container (per carrier) 12.80 (2) Railcar (per carrier) 26.70 (3) Barge (per carrier) 135.90 (4) Sacked grain (per hour per service representative plus an administrative fee per hundredweight) (CWT) 0.08 (D) Other services: (1) Submitted sample (per sample—grade and factor) 12.80 (2) Warehouseman inspection (per sample) 22.40 (3) Factor only (per factor—maximum 2 factors) 6.30 (4) Check loading/condition examination (use hourly rates from Table 1 of this section, plus an administrative fee per hundredweight if not previously assessed) (CWT) 0.08 (5) Re-inspection (grade and factor only. Sampling service additional, item (1)(i) of this table) 13.90 (6) Class X Weighing (per hour per service representative) 67.80 (E) Additional tests (excludes sampling): (1) Aflatoxin (rapid test kit method) 31.90 (2) Aflatoxin (rapid test kit method—applicant provides kit) 3 30.00 (3) All other Mycotoxins (rapid test kit method) 41.00 (4) All other Mycotoxins (rapid test kit method—applicant provides kit) 3 39.10 (5) NIR or NMR Analysis (protein, oil, starch, etc.) 10.80 (6) Waxy corn (per test) 10.80 (7) Canola (per test-00 dip test) 10.80 (8) Pesticide Residue Testing: 4 (i) Routine Compounds (per sample) 228.90 (ii) Special Compounds (Subject to availability) 122.00 (9) Fees for other tests not listed above will be based on the lowest noncontract hourly rate from Table 1 of this section (ii) Appeal inspection and review of weighing service:5 (A) Board Appeals and Appeals (grade and factor) 86.90 (1) Factor only (per factor—max 2 factors) 45.80 (2) Sampling service for Appeals additional (hourly rates from Table 1 of this section) (B) Additional tests (assessed in addition to all other applicable tests): (1) Aflatoxin (rapid test kit method) 31.90 (2) Aflatoxin (rapid test kit method—applicant provides kit) 3 29.80 (3) All other Mycotoxins (rapid test kit method) 50.00 (4) All other Mycotoxins (rapid test kit method—applicant provides kit) 3 48.10 (5) NIR or NMR Analysis (protein, oil, starch, etc.) 18.80 (6) Sunflower oil (per test) 18.80 (7) Mycotoxin (per test-HPLC) 149.40 (8) Pesticide Residue Testing: 4 (i) Routine Compounds (per sample) 228.90 (ii) Special Compounds (Subject to availability) 122.00 (9) Fees for other tests not listed above will be based on the lowest noncontract hourly rate from Table 1 of this section. (C) Review of weighing (per hour per service representative) 87.70 (iii) Stowage examination (service-on-request): 4 (A) Ship (per stowage space) (minimum $271.00 per ship) 54.20 (B) Subsequent ship examinations (same as original) (minimum $162.60 per ship) 54.20 (C) Barge (per examination) 43.50 (D) All other carriers (per examination) 17.10 1 Fees apply to original inspection and weighing, re-inspection, and appeal inspection service and include, but are not limited to, sampling, grading, weighing, prior to loading stowage examinations, and certifying results performed within 25 miles of an employee's assigned duty station. Travel and related expenses will be charged for service outside 25 miles as found in § 800.72(a). 2 An additional charge will be assessed when the revenue from the services in Schedule A, Table 2, does not cover what would have been collected at the applicable hourly rate as provided in § 800.72(b). 3 Applicant must provide the test kit, instrument hardware, calibration control, and all supplies required by the test kit manufacturer. 4 If performed outside of normal business, 1½ times the applicable unit fee will be charged. 5 If, at the request of the Service, a file sample is located and forwarded by the Agency, the Agency may, upon request, be reimbursed at the rate of $3.50 per sample by the Service. Table 3 of Schedule A—Miscellaneous Services 1 (i) Grain grading seminars (per hour per service representative) 2 $67.80. (ii) Certification of diverter-type mechanical samplers (per hour per service representative) 2 67.80. (iii) Special weighing services (per hour per service representative): 2 (A) Scale testing and certification 88.30. (B) Scale testing and certification of railroad track scales 88.30. (C) Evaluation of weighing and material handling systems 88.30. (D) NTEP Prototype evaluation (other than Railroad Track Scales) 88.30. (E) NTEP Prototype evaluation of Railroad Track Scale 88.30. (F) Use of GIPSA railroad track scale test equipment per facility for each requested service. (Track scales tested under the Association of American Railroads agreement are exempt.) 529.40. (G) Mass standards calibration and re-verification 88.30. (H) Special projects 88.30. (iv) Foreign travel (hourly fee) 3 88.30. (v) Online customized data service: (A) One data file per week for 1 year 529.40. (B) One data file per month for 1 year 317.70. (v) Samples provided to interested parties (per sample) 3.30. (vi) Divided-lot certificates (per certificate) 2.10. (vii) Extra copies of certificates (per certificate) 2.10. (viii) Faxing (per page) 2.10. (ix) Special mailing Actual Cost (x) Preparing certificates onsite or during other than normal business hours (use hourly rates from Table 1) 1Any requested service that is not listed will be performed at $67.80 per hour. 2 Regular business hours—Monday through Friday—service provided at other than regular business hours will be charged at 11/2 times the applicable hourly rate. (See the definition of “business day” in § 800.0(b)) 3 Foreign travel charged hourly fee of $88.30 plus travel, per diem, and related expenditures.
    Susan B. Keith, Acting Administrator, Grain Inspection, Packers and Stockyards.
    [FR Doc. 2016-31350 Filed 12-29-16; 8:45 am] BILLING CODE 3410-KD-P
    DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 983 [Doc. No. AMS-SC-16-0076; SC16-983-2 FIR] Pistachios Grown in California, Arizona, and New Mexico; Decreased Assessment Rate AGENCY:

    Agricultural Marketing Service, USDA.

    ACTION:

    Affirmation of interim rule as final rule.

    SUMMARY:

    The Department of Agriculture (USDA) is adopting, as a final rule, without change, an interim rule that implemented a recommendation from the Administrative Committee for Pistachios (Committee) to decrease the assessment rate established for pistachios grown in California, Arizona, and New Mexico for the 2016-2017 and subsequent production years from $0.0035 to $0.0010 per pound of assessed weight pistachios handled under the marketing order (order). The Committee locally administers the order and is comprised of producers and handlers of pistachios operating within the area of production. The interim rule was necessary to allow the Committee to reduce its financial reserve while still providing adequate funding to meet program expenses.

    DATES:

    Effective December 31, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Peter Sommers or Jeffrey Smutny, California Marketing Field Office, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA; Telephone: (559) 487-5901, Fax: (559) 487-5906, or Email: [email protected] or [email protected]

    Small businesses may obtain information on complying with this and other marketing order regulations by viewing a guide at the following Web site: http://www.ams.usda.gov/rules-regulations/moa/small-businesses; or by contacting Richard Lower, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-2491, Fax: (202) 720-8938, or Email: [email protected]

    SUPPLEMENTARY INFORMATION:

    This rule is issued under Marketing Agreement and Order No. 983, both as amended (7 CFR part 983), regulating the handling of pistachios grown in California, Arizona, and New Mexico, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

    The Department of Agriculture (USDA) is issuing this rule in conformance with Executive Orders 12866, 13563, and 13175.

    Under the order, pistachio handlers in California, Arizona, and New Mexico are subject to assessments, which provide funds to administer the order. Assessment rates issued under the order are intended to be applicable to all assessable pistachios grown in the production area for the entire production year, and continue indefinitely until amended, suspended, or terminated. The Committee's production year begins on September 1, and ends on August 31.

    In an interim rule published in the Federal Register on September 16, 2016, and effective on September 19, 2016, (81 FR 63679, Doc. No. AMS-SC-16-0076, SC16-983-2 IR), § 983.253 was amended by decreasing the assessment rate established for pistachios grown in the production area for the 2016-2017 and subsequent production years from $0.0035 to $0.0010 per pound. The decrease in the per pound assessment rate allows the Committee to maintain its financial reserve while still providing adequate funding to meet program expenses.

    Final Regulatory Flexibility Analysis

    Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) has considered the economic impact of this rule on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis.

    The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.

    There are approximately 1,152 producers of pistachios in the production area and 19 handlers subject to regulation under the marketing order. The Small Business Administration defines small agricultural producers as those having annual receipts less than $750,000, and small agricultural service firms as those whose annual receipts are less than $7,500,000. (13 CFR 121.201)

    The National Agricultural Statistics Service (NASS) 2012 data on pistachio farm size indicates that there were 1,305 pistachio farms, of which 1,125 were less than 250 acres. That is, 87 percent were too small to have annual receipts of $750,000. NASS 2015 annual production data indicates that the per-acre production of pistachios was 1,160 pounds. At an average value of $2.54 per pound, each acre of pistachios could return $2,948.40. In order for a producer to have $750,000 in annual receipts, the producer would have to have at least 255.3 acres. Thus, the majority of handlers and producers in the production area may be classified as small entities.

    Based on Committee data, it is estimated that about 53 percent of the handlers annually ship less than $7,500,000 worth of pistachios. Nine of the 19 regulated handlers (47 percent) received enough pistachios at an average price of $3.00 pound to be considered large handlers, leaving the percentage of small handlers at 53 percent.

    This rule continues in effect the action that decreased the assessment rate established for the Committee and collected from handlers for the 2016-17 and subsequent production years from $0.0035 to $0.0010 per pound of pistachios handled. The Committee unanimously recommended 2016-17 expenditures of $922,500 and an assessment rate of $0.0010 per pound of pistachios, which is $0.0025 lower than the 2015-16 rate. The quantity of assessable pistachios for the 2016-17 production year is estimated at 750 million pounds. Thus, the $0.0010 rate should provide $750,000 in assessment income. Income derived from handler's assessments, along with interest and funds from the Committee's authorized reserve, should be adequate to cover expenses for the 2016-17 production year.

    This rule continues in effect the action that decreased the assessment obligation imposed on handlers. Assessments are applied uniformly on all handlers, and some of the costs may be passed on to producers. However, decreasing the assessment rate reduces the burden on handlers, and may reduce the burden on producers.

    In addition, the Committee's meeting was widely publicized throughout the pistachio area of production and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the July 12, 2016, meeting was a public meeting and all entities, both large and small, were able to express views on this issue.

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the order's information collection requirements have been previously approved by the Office of Management and Budget (OMB) and assigned OMB No. 0581-0278. No changes in those requirements as a result of this action are necessary. Should any changes become necessary, they would be submitted to OMB for approval.

    This action imposes no additional reporting or recordkeeping requirements on either small or large pistachio handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.

    USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this rule.

    Comments on the interim rule were required to be received on or before November 15, 2016. No comments were received. Therefore, for reasons given in the interim rule, we are adopting the interim rule as a final rule, without change.

    To view the interim rule, go to: https://www.regulations.gov/docket?D=AMS-SC-16-0076.

    This action also affirms information contained in the interim rule concerning Executive Orders 12866, 12988, 13175, and 13563; the Paperwork Reduction Act (44 U.S.C. Chapter 35); and the E-Gov Act (44 U.S.C. 101).

    After consideration of all relevant material presented, it is found that finalizing the interim rule, without change, as published in the Federal Register (81 FR 63679, September 16, 2016) will tend to effectuate the declared policy of the Act.

    List of Subjects in 7 CFR Part 983

    Marketing agreements, Pistachios, Reporting and recordkeeping requirements.

    PART 983—PISTACHIOS GROWN IN CALIFORNIA, ARIZONA, AND NEW MEXICO Accordingly, the interim rule amending 7 CFR part 983, which was published at 81 FR 63679 on September 16, 2016, is adopted as a final rule, without change. Dated: December 23, 2016. Elanor Starmer, Administrator, Agricultural Marketing Service.
    [FR Doc. 2016-31532 Filed 12-29-16; 8:45 am] BILLING CODE P
    NUCLEAR REGULATORY COMMISSION 10 CFR Parts 2 and 9 [NRC-2016-0171] RIN 3150-AJ84 Update To Incorporate FOIA Improvement Act of 2016 Requirements AGENCY:

    U.S. Nuclear Regulatory Commission.

    ACTION:

    Final rule.

    SUMMARY:

    The U.S. Nuclear Regulatory Commission (NRC) is amending its regulations to reflect changes to the Freedom of Information Act (FOIA). The FOIA Improvement Act of 2016 requires the NRC to amend its FOIA regulations to update procedures for requesting information from the NRC and procedures that the NRC must follow in responding to FOIA requests.

    DATES:

    This final rule is effective on January 30, 2017.

    ADDRESSES:

    Please refer to Docket ID NRC-2016-0171 when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:

    Federal Rulemaking Web site: Go to http://www.regulations.gov and search for Docket ID NRC-2016-0171. Address questions about NRC dockets to Carol Gallagher, telephone: 301-415-3463, email: [email protected] For technical questions, contact the individual listed in the FOR FURTHER INFORMATION CONTACT section of this document.

    NRC's Agencywide Documents Access and Management System (ADAMS): You may obtain publicly-available documents online in the ADAMS Public Documents collection at http://www.nrc.gov/reading-rm/adams.html. To begin the search, select “ADAMS Public Documents” and then select “Begin Web-based ADAMS Search.” For problems with ADAMS, please contact the NRC's Public Document Room (PDR) reference staff at 1-800-397-4209, 301-415-4737, or by email to [email protected] The ADAMS accession number for each document referenced (if it is available in ADAMS) is provided the first time that it is mentioned in the SUPPLEMENTARY INFORMATION section.

    NRC's PDR: You may examine and purchase copies of public documents at the NRC's PDR, Room O1-F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852.

    FOR FURTHER INFORMATION CONTACT:

    Stephanie Blaney, telephone: 301-415-6975, email: [email protected]; or Nina Argent, telephone: 301-415-5295, email: [email protected] Both are staff of the Office of the Chief Information Officer of the U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001.

    SUPPLEMENTARY INFORMATION: Table of Contents I. Background II. Discussion of Amendments by Section III. Rulemaking Procedure IV. Plain Writing V. National Environmental Policy Act VI. Paperwork Reduction Act VII. Congressional Review Act I. Background

    The FOIA was enacted to give the public a right to access records held by the executive branch that, although not classified, were not otherwise available to them. Since its enactment in 1966, the FOIA has been amended on a number of occasions to adapt to the times and changing priorities.

    On June 30, 2016, the FOIA Improvement Act of 2016, Public Law 114-185, 130 Stat. 538 (the Act) was enacted. The Act specifically requires all agencies to review and update their FOIA regulations in accordance with its provisions. The Act addresses a range of procedural issues, including requiring that agencies establish a minimum of 90 days for requesters to file an administrative appeal and that they provide dispute resolution services at various times throughout the FOIA process. The Act also amends Exemption 5, codifies the foreseeable harm standard, and adds two new elements to agency Annual FOIA Reports.

    The NRC has identified the areas where the revisions are necessary in order to comply with the Act and is amending parts 2 and 9 of title 10 of the Code of Federal Regulations (10 CFR) accordingly.

    II. Discussion of Amendments by Section

    The following paragraphs describe the specific changes adopted by this rulemaking.

    Section 2.390 Public Inspections, Exemptions, Requests for Withholding

    This final rule revises paragraph (a)(5) to be identical to 10 CFR 9.17(a)(5), which this final rule is also revising to include new criteria for FOIA Exemption 5. The Act amended Exemption 5 of the FOIA to provide that the deliberative process privilege does not apply to records that are 25 years or older before the date on which they are requested.

    Section 9.17 Agency Records Exempt From Public Disclosure

    This final rule revises paragraph (a)(5) to include new criteria for FOIA Exemption 5. The Act amended Exemption 5 of the FOIA to provide that the deliberative process privilege does not apply to records that are 25 years or older before the date on which they are requested. This final rule redesignates paragraph (c) as paragraph (d) without change and adds a new paragraph (c) to incorporate the foreseeable harm standard that the Act codified and to include clarifying language derived from the Act about the FOIA's relationship to laws prohibiting disclosure of information.

    Section 9.19 Segregation of Exempt Information and Deletion of Identifying Details

    This final rule revises paragraph (b)(1) to change the reference § 9.17(a) to § 9.17, to account for the foreseeable harm threshold standard in the revised § 9.17(c) that applies to the exemptions listed in § 9.17(a).

    Section 9.21 Publicly-Available Records

    This final rule revises paragraph (c) introductory text to include available viewing formats. This final rule revises paragraph (c)(5) to include copies of records regardless of format, as well as adding paragraphs (c)(5)(i), (c)(5)(ii), (c)(5)(ii)(A) and (c)(5)(ii)(B). This revision is to codify frequently requested records.

    Section 9.25 Initial Disclosure Determination

    This final rule revises paragraph (c) to include requirements to make the NRC's FOIA Public Liaison available to assist in resolving any disputes and to notify the requester of the right to seek dispute resolution services from the Office of Government Information Services (OGIS). This final rule revises paragraph (f) to change the reference to § 9.17(a) to § 9.17, to account for the foreseeable harm threshold standard in the revised § 9.17(c) that applies to the exemptions listed in § 9.17(a).

    Section 9.27 Form and Content of Responses

    This final rule (1) revises paragraph (a) to include a new requirement to notify the requester of the right to seek assistance from the NRC's FOIA Public Liaison; (2) revises paragraph (b)(5) to notify the requester they now have 90 calendar days to appeal; (3) adds paragraph (b)(6) to include a new requirement to notify the requester of the right to seek assistance from the NRC's FOIA Public Liaison; and (4) adds paragraph (b)(7) to include a new requirement to notify the requester of the right to seek dispute resolution services from the NRC's FOIA Public Liaison or OGIS.

    Section 9.29 Appeal From Initial Determination

    This final rule revises paragraph (a) to change the length of time to appeal from 30 calendar days to 90 calendar days.

    Section 9.30 Contact for Dispute Resolution Services

    This final rule adds new section 10 CFR 9.30 to include contact information for obtaining dispute resolution services from OGIS and the NRC's FOIA Public Liaison.

    Section 9.39 Search and Duplication Provided Without Charge

    This final rule adds new paragraph (f) to include new fee limitations for search and duplication.

    Section 9.43 Processing Requests for a Waiver or Reduction of Fees

    This final rule revises paragraph (d) to change the length of time to appeal from 30 calendar days to 90 calendar days.

    Section 9.45 Annual Report to the Attorney General of the United States and Director of the Office of Government Information Services

    This final rule (1) revises the section heading to include the Director of OGIS as a recipient of the annual FOIA report; (2) revises paragraph (a) to include the Director of OGIS as a recipient of the annual FOIA report and to replace the incomplete list of required contents of the report found in paragraphs (a)(1)-(8) with a reference to 5 U.S.C. 552(e)(1), which contains the full list of required contents of the report; and (3) revises the link where you can locate the NRC's annual FOIA reports.

    III. Rulemaking Procedure

    Under the Administrative Procedure Act (5 U.S.C. 553(b)), an agency may waive the normal notice and comment requirements if it finds, for good cause, that they are impracticable, unnecessary, or contrary to the public interest. As authorized by 5 U.S.C. 553(b)(3)(B), the NRC finds good cause to waive notice and opportunity for comment on the amendments. Notice and opportunity for comment are unnecessary, because the NRC is issuing this final rule for the limited purpose of complying with specific direction in the Act requiring agencies to update their FOIA regulations in accordance with the Act, and the final rule updates the NRC's FOIA regulations only as necessary to bring them into compliance with the Act.

    IV. Plain Writing

    The Plain Writing Act of 2010 (Pub. L. 111-274) requires Federal agencies to write documents in a clear, concise, and well-organized manner. The NRC has written this document to be consistent with the Plain Writing Act as well as the Presidential Memorandum, “Plain Language in Government Writing,” published June 10, 1998 (63 FR 31883).

    IV. National Environmental Policy Act

    The NRC has determined that this final rule is the type of action described in categorical exclusion 10 CFR 51.22(c)(1). Therefore, neither an environmental impact statement nor an environmental assessment has been prepared for this final rule.

    V. Paperwork Reduction Act

    This final rule does not contain a collection of information as defined in the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) and, therefore, is not subject to the requirements of the Paperwork Reduction Act of 1995.

    VI. Congressional Review Act

    This final rule is a rule as defined in the Congressional Review Act (5 U.S.C. 801-808). However, the Office of Management and Budget has not found it to be a major rule as defined in the Congressional Review Act.

    List of Subjects 10 CFR Part 2

    Administrative practice and procedure, Antitrust, Byproduct material, Classified information, Confidential business information, Freedom of information, Environmental protection, Hazardous waste, Nuclear energy, Nuclear materials, Nuclear power plants and reactors, Penalties, Reporting and recordkeeping requirements, Sex discrimination, Source material, Special nuclear material, Waste treatment and disposal.

    10 CFR Part 9

    Administrative practice and procedure, Courts, Criminal penalties, Freedom of information, Government employees, Privacy, Reporting and recordkeeping requirements, Sunshine Act.

    For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; and 5 U.S.C. 552 and 553, the NRC is adopting the following amendments to 10 CFR parts 2 and 9:

    PART 2—AGENCY RULES OF PRACTICE AND PROCEDURE 1. The authority citation for part 2 continues to read as follows: Authority:

    Atomic Energy Act of 1954, secs. 29, 53, 62, 63, 81, 102, 103, 104, 105, 161, 181, 182, 183, 184, 186, 189, 191, 234 (42 U.S.C. 2039, 2073, 2092, 2093, 2111, 2132, 2133, 2134, 2135, 2201, 2231, 2232, 2233, 2234, 2236, 2239, 2241, 2282); Energy Reorganization Act of 1974, secs. 201, 206 (42 U.S.C. 5841, 5846); Nuclear Waste Policy Act of 1982, secs. 114(f), 134, 135, 141 (42 U.S.C. 10134(f), 10154, 10155, 10161); Administrative Procedure Act (5 U.S.C. 552, 553, 554, 557, 558); National Environmental Policy Act of 1969 (42 U.S.C. 4332); 44 U.S.C. 3504 note. Section 2.205(j) also issued under Sec. 31001(s), Pub. L. 104-134, 110 Stat. 1321-373 (28 U.S.C. 2461 note).

    2. In § 2.390, revise paragraph (a)(5) to read as follows:
    § 2.390 Public inspections, exemptions, requests for withholding.

    (a) * * *

    (5) Interagency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency, provided that the deliberative process privilege shall not apply to records created 25 years or more before the date on which the records were requested;

    PART 9 — PUBLIC RECORDS 3. The authority citation for part 9 continues to read as follows: Authority:

    Atomic Energy Act of 1954, sec. 161 (42 U.S.C. 2201); Energy Reorganization Act of 1974, sec. 201 (42 U.S.C. 5841); 44 U.S.C. 3504 note. Subpart A also issued under 31 U.S.C. 9701. Subpart B also issued under 5 U.S.C. 552a. Subpart C also issued under 5 U.S.C. 552b.

    4. In § 9.17, revise paragraph (a)(5), redesignate paragraph (c) as paragraph (d), and add new paragraph (c) to read as follows:
    § 9.17 Agency records exempt for public disclosure.

    (a) * * *

    (5) Interagency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency, provided that the deliberative process privilege shall not apply to records created 25 years or more before the date on which the records were requested;

    (c)(1) The NRC shall withhold information under this subpart only if—

    (i) The NRC reasonably foresees that disclosure would harm an interest protected by an exemption described in paragraph (a) of this section; or

    (ii) Disclosure is prohibited by law.

    (2) Nothing in this subpart requires disclosure of information that is otherwise prohibited from disclosure by law, or otherwise exempted from disclosure under 5 U.S.C. 552(b)(3).

    § 9.19 [Amended]
    5. In § 9.19(b)(1), remove “(a)” after “§ 9.17”. 6. In § 9.21, revise the introductory text of paragraph (c) and paragraph (c)(5) to read as follows:
    § 9.21 Publicly available records.

    (c) The following records of NRC activities are available for public inspection in an electronic format:

    * * *

    (5) Copies of all records, regardless of form or format—

    (i) That have been released to any person under § 9.23; and

    (ii)(A) That because of the nature of their subject matter, the NRC determines have become or are likely to become the subject of subsequent requests for substantially the same records; or

    (B) That have been requested 3 or more times;

    7. In § 9.25, revise paragraph (c) and in the first sentence in paragraph (f) remove “(a)” after “§ 9.17”. The revision to read as follows:
    § 9.25 Initial disclosure determination.

    (c) Exceptional circumstances. A requester may be notified in certain exceptional circumstances, when it appears that a request cannot be completed within the allowable time, and will be provided an opportunity to limit the scope of the request so that it may be processed in the time limit, or to agree to a reasonable alternative time frame for processing. When notifying a requester under this paragraph, the NRC, to aid the requester, shall make available its FOIA Public Liaison to assist in the resolution of any disputes between the requester and the agency and shall notify the requester of the requester's right to seek dispute resolution services from the Office of Government Information Services within the National Archives and Records Administration. For purposes of this paragraph, the term “exceptional circumstances” does not include delays that result from the normal predictable workload of FOIA requests or a failure by the NRC to exercise due diligence in processing the request. A requester's unwillingness to agree to reasonable modification of the request or an alternative time for processing the request may be considered as factors in determining whether exceptional circumstances exist and whether the agency exercised due diligence in responding to the request.

    8. In § 9.27, revise add a second sentence to paragraph (a), in paragraph (b)(5) remove the number “30” and add in its place the number “90”, and add paragraphs (b)(6) and (7).

    The revision and additions to read as follows:

    § 9.27 Form and content of responses.

    (a) * * * The NRC's response will notify the requester of the requester's right to seek assistance from the NRC's FOIA Public Liaison. * * *

    (b) * * *

    (6) A statement that the requester has a right to seek assistance from the NRC's FOIA Public Liaison; and

    (7) A statement that the requester has a right to seek dispute resolution services from the NRC's FOIA Public Liaison or the Office of Government Information Services within the National Archives and Records Administration.

    § 9.29 [Amended]
    9. In § 9.29(a) remove the number “30” and add in its place the number “90”. 10. Add § 9.30 to read as follows:
    § 9.30 Contact for dispute resolution services.

    (a) NRC's FOIA Public Liaison:

    (1) By mail—11555 Rockville Pike, Rockville, MD 20852;

    (2) By facsimile—301-415-5130; and

    (3) By email—[email protected]

    (b) Office of Government Information Services within National Archives and Records Administration:

    (1) By mail—8601 Adelphi Road-OGIS, College Park, MD 20740;

    (2) By facsimile—202-741-5769; and

    (3) By email—[email protected]

    11. In § 9.39, add paragraph (f) to read as follows:
    § 9.39 Search and duplication provided without charge.

    (f)(1) Except as described in paragraphs (f)(2), (3), and (4) of this section, if the NRC fails to comply with any time limit under §§ 9.25 or 9.29, it may not charge search fees or, in the case of requests from requesters described in § 9.33(a)(2), may not charge duplication fees.

    (2) If the NRC has determined that unusual circumstances, as defined in § 9.13, apply and the NRC provided timely written notice to the requester in accordance with the Freedom of Information Act, a failure to comply with the time limit shall be excused for an additional 10 days.

    (3) If the NRC has determined that unusual circumstances, as defined in § 9.13, apply and more than 5,000 pages are necessary to respond to the request, the NRC may charge search fees or, in the case of requests from requesters described in § 9.33(a)(2), may charge duplication fees, if the NRC has provided timely written notice to the requester in accordance with the Freedom of Information Act and the NRC has discussed with the requester via written mail, email, or telephone (or made not less than three good-faith attempts to do so) how the requester could effectively limit the scope of the request in accordance with 5 U.S.C. 552(a)(6)(B)(ii).

    (4) If a court has determined that exceptional circumstances exist, as defined by 5 U.S.C. 552(a)(6)(C), a failure to comply with the time limit shall be excused for the length of time provided by the court order.

    § 9.43 [Amended]
    12. In § 9.43(d), remove the number “30” and add in its place the number “90”. 13. Revise § 9.45 to read as follows:
    § 9.45 Annual report to the Attorney General of the United States and Director of the Office of Government Information Services.

    (a) On or before February 1 of each year, the NRC will submit a report covering the preceding fiscal year to the Attorney General of the United States and to the Director of the Office of Government Information Services which shall include the information required by 5 U.S.C. 552(e)(1).

    (b) The NRC will make its annual FOIA reports available to the public at the NRC Web site, http://www.nrc.gov.

    Dated at Rockville, Maryland, this 15th day of December, 2016.

    For the Nuclear Regulatory Commission.

    Michael R. Johnson, Acting Executive Director for Operations.
    [FR Doc. 2016-31595 Filed 12-29-16; 8:45 am] BILLING CODE 7590-01-P
    NUCLEAR REGULATORY COMMISSION 10 CFR Part 140 [NRC-2016-0164] RIN 3150-AJ81 Increase in the Maximum Amount of Primary Nuclear Liability Insurance AGENCY:

    Nuclear Regulatory Commission.

    ACTION:

    Final rule.

    SUMMARY:

    The U.S. Nuclear Regulatory Commission (NRC) is amending its regulations to increase the required amount 1 of primary nuclear liability insurance from $375 million to $450 million for each nuclear reactor that is licensed to operate, is designed for the production of electrical energy, and has a rated capacity of 100,000 electrical kilowatts or more. This change conforms to the provision in the Price-Anderson Amendments Act of 1988 (Pub. L. 100-408) (Price-Anderson Act) that the amount of primary financial protection required of licensees by the NRC shall be the maximum amount available at reasonable cost and on reasonable terms from private sources.

    1 The title listed in the information submitted by the NRC for the Unified Agenda was “Increase in the Maximum Limit of Primary Nuclear Liability Insurance.” The title was changed here to reflect that the regulation makes reference to “Maximum Amount.” The use of the term “Maximum Limit” is an incorrect description of the statutory requirement and the regulation revision.

    DATES:

    Effective Date: This final rule is effective on January 1, 2017.

    ADDRESSES:

    Please refer to Docket ID NRC-2016-0164 when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:

    Federal Rulemaking Web site: Go to http://www.regulations.gov and search for Docket ID NRC-2016-0164. Address questions about NRC dockets to Carol Gallagher; telephone: 301-415-3463; email: [email protected] For technical questions, contact the individual listed in the FOR FURTHER INFORMATION CONTACT section of this document.

    NRC's Agencywide Documents Access and Management System (ADAMS): You may obtain publicly-available documents online in the ADAMS Public Documents collection at http://www.nrc.gov/reading-rm/adams.html. To begin the search, select “ADAMS Public Documents” and then select “Begin Web-based ADAMS Search.” For problems with ADAMS, please contact the NRC's Public Document Room (PDR) reference staff at 1-800-397-4209, 301-415-4737, or by email to [email protected] The ADAMS accession number for each document referenced (if it is available in ADAMS) is provided the first time that it is mentioned in the SUPPLEMENTARY INFORMATION section.

    NRC's PDR: You may examine and purchase copies of public documents at the NRC's PDR, Room O1-F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852.

    FOR FURTHER INFORMATION CONTACT:

    Natreon Jordan, Office of Nuclear Reactor Regulation, telephone: 301-415-7410, email: [email protected]; U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001.

    SUPPLEMENTARY INFORMATION:

    Table of Contents I. Discussion II. Rulemaking Procedure III. Section-By-Section Analysis IV. Regulatory Flexibility Certification V. Regulatory Analysis VI. Backfit and Issue Finality VII. Plain Writing VIII. National Environmental Policy Act IX. Paperwork Reduction Act X. Congressional Review Act I. Discussion

    The NRC's regulations in part 140 of title 10 of the Code of Federal Regulations (10 CFR), “Financial Protection Requirements and Indemnity Agreements,” provide requirements and procedures for implementing the financial protection requirements for certain licensees and other persons under the Price-Anderson Act, incorporated as Section 170 of the Atomic Energy Act of 1954, as amended (AEA). The Price-Anderson Act states that, for each nuclear reactor that is licensed to operate, is designed for the production of electrical energy, and has a rated capacity of 100,000 electrical kilowatts or more (henceforth referred to as large operating reactors), “the amount of primary financial protection required shall be the maximum amount available at reasonable cost and on reasonable terms from private sources.” (Section 170(b) of the AEA) This requirement of the Price-Anderson Act is implemented in the NRC's regulations at § 140.11(a)(4), “Amounts of financial protection for certain reactors.” The current maximum amount of primary financial protection available from private sources is $375 million. Therefore, § 140.11(a)(4) currently requires large commercial operating reactors to have and maintain primary nuclear liability insurance in the amount of $375 million.

    On June 15, 2016, American Nuclear Insurers (ANI), the underwriter of American nuclear liability policies, acting on behalf of its member companies, notified the NRC that it will be increasing “its maximum available primary nuclear liability limit from $375 million to $450 million, effective on January 1, 2017” (ADAMS Accession No. ML16239A254). The ANI makes such adjustments on a non-periodic basis. The last such adjustment was made in 2010, and the NRC revised § 140.11 to reflect the increased maximum available amount of primary nuclear liability insurance (75 FR 16645; April 2, 2010).

    To implement this adjustment, in accordance with the Price-Anderson Act, the NRC is revising 10 CFR part 140 to require large operating reactors to have and maintain $450 million in primary financial protection.

    The NRC is not currently revising the appendices in § 140.91, § 140.92, or § 140.93 that provide general forms of liability policies and indemnity agreements that were determined to be acceptable to the Commission. These appendices include historical insurance providers and protection amounts for primary liability insurance that are no longer in use (for example, values of $124 million and $36 million from the 1979 final rule (44 FR 20632; April 6, 1979) and values of $200 million, $155 million, and $45 million from the 1989 final rule (54 FR 24157; June 6, 1989)). However, these appendices continue to provide relevant general forms of policies and agreements.

    II. Rulemaking Procedure

    This final rule is being issued without prior public notice or opportunity for public comments. The Administrative Procedure Act (5 U.S.C. 553(b)(B)) does not require an agency to use the public notice and comment process “when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefore in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” In this instance, the NRC finds, for good cause, that solicitation of public comment on this final rule is unnecessary because the Price-Anderson Act requires a non-discretionary adjustment in the maximum amount required for primary nuclear liability insurance. Requesting public comment on this non-discretionary adjustment, which is required by statute, would not result in a change to the adjusted amount.

    III. Section-By-Section Analysis

    The following paragraphs describe the specific changes that are reflected in this final rule.

    Section 140.11 Amounts of Financial Protection for Certain Reactors

    In paragraph (a)(4), this final rule removes “$375,000,000” and replaces it with the increased maximum amount of primary nuclear liability insurance of “$450,000,000.”

    IV. Regulatory Flexibility Certification

    Under the Regulatory Flexibility Act (5 U.S.C. 605(b)), the NRC certifies that this final rule does not have a significant economic impact on a substantial number of small entities. This final rule affects only the licensing and operation of nuclear power plants. The companies that own these plants do not fall within the scope of the definition of “small entities” set forth in the Regulatory Flexibility Act or the size standards established by the NRC (10 CFR 2.810).

    V. Regulatory Analysis

    A regulatory analysis was not prepared for this final rule because the change in the maximum amount of nuclear liability insurance is mandated by the Price-Anderson Act.

    VI. Backfit and Issue Finality

    The NRC has determined that the backfit rule does not apply to this final rule. A backfit analysis is not required for this final rule because this amendment is mandated by the Price-Anderson Act.

    VII. Plain Writing

    The Plain Writing Act of 2010 (Pub. L. 111-274) requires Federal agencies to write documents in a clear, concise, and well-organized manner. The NRC has written this document to be consistent with the Plain Writing Act as well as the Presidential Memorandum, “Plain Language in Government Writing,” published June 10, 1998 (63 FR 31883).

    VIII. National Environmental Policy Act

    The NRC has determined that this final rule is the type of action described in categorical exclusion 10 CFR 51.22(c)(1). Therefore, neither an environmental impact statement nor an environmental assessment has been prepared for this final rule.

    IX. Paperwork Reduction Act

    This final rule does not contain any new or amended collections of information subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). Existing collections of information were approved by the Office of Management and Budget (OMB), approval number 3150-0039.

    Public Protection Notification

    The NRC may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the document requesting or requiring the collection displays a currently valid OMB control number.

    X. Congressional Review Act

    This final rule is a rule as defined in the Congressional Review Act (5 U.S.C. 801-808). However, the Office of Management and Budget has not found it to be a major rule as defined in the Congressional Review Act.

    List of Subjects in 10 CFR Part 140

    Criminal penalties, Extraordinary nuclear occurrence, Insurance, Intergovernmental relations, Nuclear materials, Nuclear power plants and reactors, Penalties, Reporting and recordkeeping requirements.

    For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; and 5 U.S.C. 552 and 553, the NRC is adopting the following amendments to 10 CFR part 140.

    PART 140—FINANCIAL PROTECTION REQUIREMENTS AND INDEMNITY AGREEMENTS 1. The authority citation for part 140 continues to read as follows: Authority:

    Atomic Energy Act of 1954, secs. 161, 170, 223, 234 (42 U.S.C. 2201, 2210, 2273, 2282); Energy Reorganization Act of 1974, secs. 201, 202 (42 U.S.C. 5841, 5842); 44 U.S.C. 3504 note.

    2. In § 140.11, paragraph (a)(4) is revised to read as follows:
    § 140.11 Amounts of financial protection for certain reactors.

    (a) * * *

    (4) In an amount equal to the sum of $450,000,000 and the amount available as secondary financial protection (in the form of private liability insurance available under an industry retrospective rating plan providing for deferred premium charges equal to the pro rata share of the aggregate public liability claims and costs, excluding costs payment of which is not authorized by section 170o.(1)(D) of the Act, in excess of that covered by primary financial protection) for each nuclear reactor which is licensed to operate and which is designed for the production of electrical energy and has a rated capacity of 100,000 electrical kilowatts or more: Provided, however, that under such a plan for deferred premium charges for each nuclear reactor that is licensed to operate, no more than $121,255,000 with respect to any nuclear incident (plus any surcharge assessed under subsection 170o.(1)(E) of the Act) and no more than $18,963,000 per incident within one calendar year shall be charged. Except that, where a person is authorized to operate a combination of 2 or more nuclear reactors located at a single site, each of which has a rated capacity of 100,000 or more electrical kilowatts but not more than 300,000 electrical kilowatts with a combined rated capacity of not more than 1,300,000 electrical kilowatts, each such combination of reactors shall be considered to be a single nuclear reactor for the sole purpose of assessing the applicable financial protection required under this section.

    Dated at Rockville, Maryland, this 15th day of December 2016.

    For the Nuclear Regulatory Commission.

    Michael R. Johnson, Acting Executive Director for Operations.
    [FR Doc. 2016-31368 Filed 12-29-16; 8:45 am] BILLING CODE 7590-01-P
    DEPARTMENT OF ENERGY 10 CFR Parts 207, 218, 429, 431, 490, 501, 601, 820, 824, 851, 1013, 1017, and 1050 RIN 1990-AA46 Inflation Adjustment of Civil Monetary Penalties AGENCY:

    Office of the General Counsel, U.S. Department of Energy.

    ACTION:

    Final rule.

    SUMMARY:

    The Department of Energy (“DOE”) publishes this final rule to adjust DOE's civil monetary penalties (“CMPs”) for inflation as mandated by the Federal Civil Penalties Inflation Adjustment Act of 1990, as further amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (collectively referred to herein as “the Act”). This rule adjusts CMPs within the jurisdiction of DOE to the maximum amount required by the Act.

    DATES:

    This rule is effective December 30, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Preeti Chaudhari, U.S. Department of Energy, Office of the General Counsel, GC-33, 1000 Independence Avenue SW., Washington, DC 20585, (202) 586-8078.

    SUPPLEMENTARY INFORMATION:

    I. Background II. Method of Calculation III. Summary of Final Rule IV. Final Rulemaking V. Regulatory Review I. Background

    In order to improve the effectiveness of CMPs and to maintain their deterrent effect, the Federal Civil Penalties Inflation Adjustment Act of 1990, 28 U.S.C. 2461 note (“the Inflation Adjustment Act”), as further amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Pub. L. 114-74) (“the 2015 Act”), requires Federal agencies to adjust each CMP provided by law within the jurisdiction of the agency. The 2015 Act requires agencies to adjust the level of CMPs with an initial “catch-up” adjustment through an interim final rulemaking and to make subsequent annual adjustments for inflation, notwithstanding 5 U.S.C. 553. DOE's initial catch-up adjustment interim final rule was published June 28, 2016 (81 FR 41790). DOE received no public comments in response to the interim final rule. The interim final rule is today adopted as final without amendment. The 2015 Act also provides that any increase in a CMP shall apply only to CMPs, including those whose associated violation predated such increase, which are assessed after the date the increase takes effect.

    In accordance with the 2015 Act, OMB issued a guidance memorandum on the implementation of the 2017 annual adjustment pursuant to the 2015 Act.1 This final rule is issued in accordance with applicable law and the OMB guidance memorandum.

    1 The guidance memorandum was issued on December 16, 2016, provides the 2017 adjustment multiplier, and addresses how to apply it.

    II. Method of Calculation

    The method of calculating CMP adjustments applied in this final rule is required by the 2015 Act. Under the 2015 Act, annual inflation adjustments subsequent to the initial catch-up adjustment are to be based on the percent change between the October Consumer Price Index for all Urban Consumers (CPI-U) preceding the date of the adjustment, and the prior year's October CPI-U. Pursuant to the aforementioned OMB guidance memorandum, the adjustment multiplier for 2017 is 1.01636. In order to complete the 2017 annual adjustment, each CMP is multiplied by the 2017 adjustment multiplier. Under the 2015 Act, any increase in CMP must be rounded to the nearest multiple of $1.

    III. Summary of the Final Rule

    The following list summarizes DOE authorities containing CMPs, and the penalties before and after adjustment.

    2 Implemented by 10 CFR 820.81, 10 CFR 851.5, and appendix B to 10 CFR part 851.

    DOE Authority containing civil monetary penalty Before adjustment After adjustment 10 CFR 207.7 $10,000 $10,164. 10 CFR 218.42 21,661 22,015. 10 CFR 429.120 433 440. 10 CFR 431.382 433 440. 10 CFR 490.604 8,386 8,523. 10 CFR 501.181 —88,613 —90,063. —8/mcf —8/mcf. —35/bbl —36/bbl. 10 CFR 601.400 and App A —minimum 18,936 —minimum 19,246 —maximum 189,361 —maximum 192,459. 10 CFR 820.81 197,869 201,106. 10 CFR 824.1 and App A 141,402 143,715. 10 CFR 824.4 and App A 141,402 143,715. 10 CFR 851.5 and App B 91,830 93,332. 10 CFR 1013.3 10,781 10,957. 10 CFR 1017.29 254,645 258,811. 10 CFR 1050.303 19,305 19,621. 50 U.S.C. 2731 2 8,655 8,797. IV. Final Rulemaking

    The 2015 Act requires that annual adjustments for inflation subsequent to the initial “catch-up” adjustment be made notwithstanding 5 U.S.C. 553.

    V. Regulatory Review A. Executive Order 12866

    This rule has been determined not to be a significant regulatory action under Executive Order 12866, “Regulatory Planning and Review,” 58 FR 51735 (October 4, 1993). Accordingly, this action was not subject to review under that Executive Order by the Office of Information and Regulatory Affairs of the Office of Management and Budget.

    B. National Environmental Policy Act

    DOE has determined that this final rule is covered under the Categorical Exclusion found in DOE's National Environmental Policy Act regulations at paragraph A5 of Appendix A to Subpart D, 10 CFR part 1021, which applies to a rulemaking that amends an existing rule or regulation and that does not change the environmental effect of the rule or regulation being amended. Accordingly, neither an environmental assessment nor an environmental impact statement is required.

    C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires preparation of an initial regulatory flexibility analysis for any rule that by law must be proposed for public comment. As discussed above, the 2015 Act requires that annual inflation adjustments subsequent to the initial catch-up adjustment be made notwithstanding 5 U.S.C. 553. Because a notice of proposed rulemaking is not required for this action pursuant to 5 U.S.C. 553, or any other law, no regulatory flexibility analysis has been prepared for this final rule.

    D. Paperwork Reduction Act

    This final rule imposes no new information collection requirements subject to the Paperwork Reduction Act.

    E. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) generally requires Federal agencies to examine closely the impacts of regulatory actions on State, local, and tribal governments. Section 201 excepts agencies from assessing effects on State, local or tribal governments or the private sector of rules that incorporate requirements specifically set forth in law. Because this rule incorporates requirements specifically set forth in 28 U.S.C. 2461 note, DOE is not required to assess its regulatory effects under Section 201. Unfunded Mandates Reform Act sections 202 and 205 do not apply to today's action because they apply only to rules for which a general notice of proposed rulemaking is published. Nevertheless, DOE has determined that this regulatory action does not impose a Federal mandate on State, local, or tribal governments or on the public sector.

    F. Treasury and General Government Appropriations Act, 1999

    Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any proposed rule that may affect family well being. This rule would not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.

    G. Executive Order 13132

    Executive Order 13132, “Federalism,” 64 FR 43255 (August 4, 1999) imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. Agencies are required to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and carefully assess the necessity for such actions. DOE has examined this rule and has determined that it would not preempt State law and would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. No further action is required by Executive Order 13132.

    H. Executive Order 12988

    With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform,” 61 FR 4729 (February 7, 1996), imposes on Executive agencies the general duty to adhere to the following requirements: (1) Eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; and (3) provide a clear legal standard for affected conduct rather than a general standard and promote simplification and burden reduction. With regard to the review required by section 3(a), section 3(b) of Executive Order 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) Clearly specifies the preemptive effect, if any; (2) clearly specifies any effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires Executive agencies to review regulations in light of applicable standards in section 3(a) and section 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. DOE has completed the required review and determined that, to the extent permitted by law, this rule meets the relevant standards of Executive Order 12988.

    I. Treasury and General Government Appropriations Act, 2001

    The Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516 note) provides for agencies to review most disseminations of information to the public under guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (February 22, 2002), and DOE's guidelines were published at 67 FR 62446 (October 7, 2002). DOE has reviewed this rule under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines.

    J. Executive Order 13211

    Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001) requires Federal agencies to prepare and submit to OMB, a Statement of Energy Effects for any proposed significant energy action. A “significant energy action” is defined as any action by an agency that promulgated or is expected to lead to promulgation of a final rule, and that: (1) Is a significant regulatory action under Executive Order 12866, or any successor order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy, or (3) is designated by the Administrator of OIRA as a significant energy action. For any proposed significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use. This regulatory action would not have a significant adverse effect on the supply, distribution, or use of energy and is therefore not a significant energy action. Accordingly, DOE has not prepared a Statement of Energy Effects.

    K. Congressional Notification

    As required by 5 U.S.C. 801, DOE will submit to Congress a report regarding the issuance of this final rule prior to the effective date set forth at the outset of this rulemaking. The report will state that it has been determined that the rule is not a “major rule” as defined by 5 U.S.C. 801(2).

    L. Approval of the Office of the Secretary

    The Secretary of Energy has approved publication of this final rule.

    List of Subjects 10 CFR Part 207

    Administrative practice and procedure, Energy, Penalties.

    10 CFR Part 218

    Administrative practice and procedure, Penalties, Petroleum allocation.

    10 CFR Part 429

    Confidential business information, Energy conservation, Household appliances, Imports, Incorporation by reference, Reporting and recordkeeping requirements.

    10 CFR Part 431

    Administrative practices and procedure, Confidential business information, Energy conservation, Incorporation by reference, Reporting and recordkeeping requirements.

    10 CFR Part 490

    Administrative practice and procedure, Energy conservation, Penalties.

    10 CFR Part 501

    Administrative practice and procedure, Electric power plants, Energy conservation, Natural gas, Petroleum.

    10 CFR Part 601

    Government contracts, Grant programs, Loan programs, Penalties.

    10 CFR Part 820

    Administrative practice and procedure, Government contracts, Penalties, Radiation protection.

    10 CFR Part 824

    Government contracts, Nuclear materials, Penalties, Security measures.

    10 CFR Part 851

    Civil penalty, Hazardous substances, Occupational safety and health, Safety, Reporting and recordkeeping requirements.

    10 CFR Part 1013

    Administrative practice and procedure, Claims, Fraud, Penalties.

    10 CFR Part 1017

    Administrative practice and procedure, Government contracts, National Defense, Nuclear Energy, Penalties, Security measures.

    10 CFR Part 1050

    Decorations, medals, awards, Foreign relations, Government employees, Government property, Reporting and recordkeeping requirements.

    Issued in Washington, DC, on December 20, 2016. Steven Croley, General Counsel.

    For the reasons set forth in the preamble, DOE amends chapters II, III, and X of title 10 of the Code of Federal Regulations as set forth below.

    PART 207—COLLECTION OF INFORMATION 1. The authority citation for part 207 continues to read as follows: Authority:

    15 U.S.C. 787 et seq.; 15 U.S.C. 791 et seq.; E.O. 11790, 39 FR 23185; 28 U.S.C. 2461 note.

    2. Section 207.7 is amended by revising the first sentence of paragraph (c)(1) to read as follows:
    § 207.7 Sanctions.

    (c) * * * (1) Any person who violates any provision of this subpart or any order issued pursuant thereto shall be subject to a civil penalty of not more than $10,164 for each violation. * * *

    PART 218—STANDBY MANDATORY INTERNATIONAL OIL ALLOCATION 3. The authority citation for part 218 continues to read as follows: Authority:

    15 U.S.C. 751 et seq.; 15 U.S.C. 787 et seq.; 42 U.S.C. 6201 et seq.; 42 U.S.C. 7101 et seq.; E.O. 11790, 39 FR 23185; E.O. 12009, 42 FR 46267; 28 U.S.C. 2461 note.

    4. Section 218.42 is amended by revising paragraph (b)(1) to read as follows:
    § 218.42 Sanctions.

    (b) * * * (1) Any person who violates any provision of this part 218 or any order issued pursuant thereto shall be subject to a civil penalty of not more than $22,015 for each violation.

    PART 429—CERTIFICATION, COMPLIANCE, AND ENFORCEMENT FOR CONSUMER PRODUCTS AND COMMERCIAL AND INDUSTRIAL EQUIPMENT 5. The authority citation for part 429 continues to read as follows: Authority:

    42 U.S.C. 6291-6317; 28 U.S.C. 2461 note.

    6. Section 429.120 is amended by revising the first sentence to read as follows:
    § 429.120 Maximum civil penalty.

    Any person who knowingly violates any provision of § 429.102(a) may be subject to assessment of a civil penalty of no more than $440 for each violation. * * *

    PART 431—ENERGY EFFICIENCY PROGRAM FOR CERTAIN COMMERCIAL AND INDUSTRIAL EQUIPMENT 7. The authority citation for part 431 continues to read as follows: Authority:

    42 U.S.C. 6291-6317; 28 U.S.C. 2461 note.

    8. Section 431.382 is amended by revising paragraph (b) to read as follows:
    § 431.382 Prohibited acts.

    (b) In accordance with sections 333 and 345 of the Act, any person who knowingly violates any provision of paragraph (a) of this section may be subject to assessment of a civil penalty of no more than $440 for each violation.

    PART 490—ALTERNATIVE FUEL TRANSPORTATION PROGRAM 9. The authority citation for part 490 continues to read as follows: Authority:

    42 U.S.C. 7191 et seq.; 42 U.S.C. 13201, 13211, 13220, 13251 et seq; 28 U.S.C. 2461 note.

    10. Section 490.604 is amended by revising paragraph (a) to read as follows:
    § 490.604 Penalties and Fines.

    (a) Civil Penalties. Whoever violates § 490.603 of this part shall be subject to a civil penalty of not more than $8,523 for each violation.

    PART 501—ADMINISTRATIVE PROCEDURES AND SANCTIONS 11. The authority citation for part 501 continues to read as follows: Authority:

    42 U.S.C. 7101 et seq.; 42 U.S.C. 8301 et seq.; 42 U.S.C. 8701 et seq.; E.O. 12009, 42 FR 46267; 28 U.S.C. 2461 note.

    12. Section 501.181 is amended by revising paragraph (c)(1) to read as follows:
    § 501.181 Sanctions.

    (c) * * * (1) Any person who violates any provisions of the Act (other than section 402) or any rule or order thereunder will be subject to the following civil penalty, which may not exceed $90,063 for each violation: Any person who operates a powerplant or major fuel burning installation under an exemption, during any 12-calendar-month period, in excess of that authorized in such exemption will be assessed a civil penalty of up to $8 for each MCF of natural gas or up to $36 for each barrel of oil used in excess of that authorized in the exemption.

    PART 601—NEW RESTRICTIONS ON LOBBYING 13. The authority citation for part 601 continues to read as follows: Authority:

    31 U.S.C. 1352; 42 U.S.C. 7254 and 7256; 31 U.S.C. 6301-6308; 28 U.S.C. 2461 note.

    14. Section 601.400 is amended by revising paragraphs (a), (b) and (e) to read as follows:
    § 601.400 Penalties.

    (a) Any person who makes an expenditure prohibited herein shall be subject to a civil penalty of not less than $19,246 and not more than $192,459 for each such expenditure.

    (b) Any person who fails to file or amend the disclosure form (see appendix B to this part) to be filed or amended if required herein, shall be subject to a civil penalty of not less than $19,246 and not more than $192,459 for each such failure.

    (e) First offenders under paragraphs (a) or (b) of this section shall be subject to a civil penalty of $19,246, absent aggravating circumstances. Second and subsequent offenses by persons shall be subject to an appropriate civil penalty between $19,246 and $192,459, as determined by the agency head or his or her designee.

    15. Appendix A to part 601 is amended by: a. Revising the last sentence of the second undesignated paragraph, in paragraph (3) of the section entitled, “Certification for Contracts, Grants, Loans, and Cooperative Agreements”; and b. Revising the last sentence of the third undesignated paragraph, in the section entitled, “Statement for Loan Guarantees and Loan Insurance”.

    The revisions read as follows:

    Appendix A to Part 601—Certification Regarding Lobbying Certification for Contracts, Grants, Loans, and Cooperative Agreements

    (3) * * *

    * * * Any person who fails to file the required certification shall be subject to a civil penalty of not less than $19,246 and not more than $192,459 for each such failure.

    Statement for Loan Guarantees and Loan Insurance

    * * * Any person who fails to file the required statement shall be subject to a civil penalty of not less than $19,246 and not more than $192,459 for each such failure.

    PART 820—PROCEDURAL RULES FOR DOE NUCLEAR ACTIVITIES 16. The authority citation for part 820 continues to read as follows: Authority:

    42 U.S.C. 2201; 2282(a); 7191; 28 U.S.C. 2461 note; 50 U.S.C. 2410.

    17. Section 820.81 is amended by revising the first sentence to read as follows:
    § 820.81 Amount of penalty.

    Any person subject to a penalty under 42 U.S.C. 2282a shall be subject to a civil penalty in an amount not to exceed $201,106 for each such violation. * * *

    PART 824—PROCEDURAL RULES FOR THE ASSESSMENT OF CIVIL PENALTIES FOR CLASSIFIED INFORMATION SECURITY VIOLATIONS 18. The authority citation for part 824 continues to read as follows: Authority:

    42 U.S.C. 2201, 2282b, 7101 et seq., 50 U.S.C. 2401 et seq.; 28 U.S.C. 2461 note.

    19. Section 824.1 is amended by revising the second sentence to read as follows:
    § 824.1 Purpose and scope.

    * * * Subsection a. provides that any person who has entered into a contract or agreement with the Department of Energy, or a subcontract or subagreement thereto, and who violates (or whose employee violates) any applicable rule, regulation or order under the Act relating to the security or safeguarding of Restricted Data or other classified information, shall be subject to a civil penalty not to exceed $143,715 for each violation. * * *

    20. Section 824.4 is amended by revising paragraph (c) to read as follows:
    § 824.4 Civil penalties.

    (c) The Director may propose imposition of a civil penalty for violation of a requirement of a regulation or rule under paragraph (a) of this section or a compliance order issued under paragraph (b) of this section, not to exceed $143,715 for each violation.

    PART 851—WORKER SAFETY AND HEALTH PROGRAM 21. The authority citation for part 851 continues to read as follows: Authority:

    42 U.S.C. 2201(i)(3), (p); 42 U.S.C. 2282c; 42 U.S.C. 5801 et seq.; 42 U.S.C. 7101 et seq.; 50 U.S.C. 2401 et seq.; 28 U.S.C. 2461 note.

    22. Section 851.5 is amended by revising the first sentence of paragraph (a) to read as follows:
    § 851.5 Enforcement.

    (a) A contractor that is indemnified under section 170d. of the AEA (or any subcontractor or supplier thereto) and that violates (or whose employee violates) any requirement of this part shall be subject to a civil penalty of up to $93,332 for each such violation. * * *

    23. Appendix B to part 851 is amended by: a. Revising the last sentences of paragraphs (b)(1) and (2) in section VI; and b. Revising paragraph 1.(e)(1) in section IX.

    The revisions read as follows:

    Appendix B to Part 851—General Statement of Enforcement Policy VI. Severity of Violations

    (b) * * *

    (1) * * * A Severity Level I violation would be subject to a base civil penalty of up to 100% of the maximum base civil penalty of $93,332.

    (2) * * * A Severity Level II violation would be subject to a base civil penalty up to 50% of the maximum base civil penalty ($46,666).

    IX. Enforcement Actions 1. Notice of Violation

    (e) * * *

    (1) DOE may assess civil penalties of up to $93,332 per violation per day on contractors (and their subcontractors and suppliers) that are indemnified by the Price-Anderson Act, 42 U.S.C. 2210(d). See 10 CFR 851.5(a).

    PART 1013—PROGRAM FRAUD CIVIL REMEDIES AND PROCEDURES 24. The authority citation for part 1013 continues to reads as follows: Authority:

    31 U.S.C. 3801-3812; 28 U.S.C. 2461 note.

    25. Section 1013.3 is amended by revising paragraphs (a)(1)(iv) and (b)(1)(ii) to read as follows:
    § 1013.3 Basis for civil penalties and assessments.

    (a) * * *

    (1) * * *

    (iv) Is for payment for the provision of property or services which the person has not provided as claimed, shall be subject, in addition to any other remedy that may be prescribed by law, to a civil penalty of not more than $10,957 for each such claim.

    (b) * * *

    (1) * * *

    (ii) Contains or is accompanied by an express certification or affirmation of the truthfulness and accuracy of the contents of the statement, shall be subject, in addition to any other remedy that may be prescribed by law, to a civil penalty of not more than $10,957 for each such statement.

    PART 1017—IDENTIFICATION AND PROTECTION OF UNCLASSIFIED CONTROLLED NUCLEAR INFORMATION 26. The authority citation for part 1017 continues to read as follows: Authority:

    42 U.S.C. 7101 et seq.; 50 U.S.C. 2401 et seq.; 42 U.S.C. 2168; 28 U.S.C. 2461 note.

    27. Section 1017.29 is amended by revising paragraph (c) to read as follows:
    § 1017.29 Civil penalty.

    (c) Amount of penalty. The Director may propose imposition of a civil penalty for violation of a requirement of a regulation under paragraph (a) of this section or a compliance order issued under paragraph (b) of this section, not to exceed $258,811 for each violation.

    PART 1050—FOREIGN GIFTS AND DECORATIONS 28. The authority citation for part 1050 continues to read as follows: Authority:

    The Constitution of the United States, Article I, Section 9; 5 U.S.C. 7342; 22 U.S.C. 2694; 42 U.S.C. 7254 and 7262; 28 U.S.C. 2461 note.

    29. Section 1050.303 is amended by revising the last sentence in paragraph (d) to read as follows:
    § 1050.303 Enforcement.

    (d) * * * The court in which such action is brought may assess a civil penalty against such employee in any amount not to exceed the retail value of the gift improperly solicited or received plus $19,621.

    [FR Doc. 2016-31035 Filed 12-29-16; 8:45 am] BILLING CODE 6450-01-P
    DEPARTMENT OF THE TREASURY Office of the Comptroller of the Currency 12 CFR Part 7 [Docket ID OCC-2016-0022] RIN 1557-AD93 Industrial and Commercial Metals AGENCY:

    Office of the Comptroller of the Currency (OCC), Treasury.

    ACTION:

    Final rule.

    SUMMARY:

    The OCC is finalizing a rule to prohibit national banks and federal savings associations from dealing or investing in industrial or commercial metals.

    DATES:

    This final rule is effective April 1, 2017.

    FOR FURTHER INFORMATION CONTACT:

    Casey Scott Laxton, Counsel, or Margo Dey, Counsel, Securities and Corporate Practices Division, (202) 649-5510; Carl Kaminski, Special Counsel, Legislative and Regulatory Activities Division, (202) 649-5490; or, for persons who are deaf or hard of hearing, TTY, (202) 649-5597, 400 7th Street SW., Washington, DC 22019.

    SUPPLEMENTARY INFORMATION: I. Background

    In September 2016, the OCC issued a Notice of Proposed Rulemaking (NPRM) to prohibit national banks from dealing or investing in industrial or commercial metals.1 The OCC proposed to: (i) Exclude industrial and commercial metals from the terms “exchange,” “coin,” and “bullion” in the “powers clause” of the National Bank Act at 12 U.S.C. 24(Seventh); and (ii) provide that dealing or investing in industrial or commercial metal is not part of, or incidental to, the business of banking. The proposed prohibitions were generally consistent with recommendations made by the U.S. Senate Permanent Subcommittee on Investigations in 2014,2 as well as recommendations described in a September 2016 report to the U.S. Congress and the Financial Stability Oversight Council (FSOC) prepared by the OCC, the Board of Governors of the Federal Reserve System (“Board”), and the Federal Deposit Insurance Corporation pursuant to section 620 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”).3

    1 81 FR 63428 (Sept. 15, 2016).

    2 “Wall Street Bank Involvement with Physical Commodities,” U.S. Senate Permanent Subcommittee on Investigations, available at: http://www.hsgac.senate.gov/download/report-wall-street-involvement-with-physical-commodities (“PSI Report”).

    3 “Report to Congress and the Financial Stability Oversight Council Pursuant to Section 620 of the Dodd-Frank Act,” at 86-90 (September 2016), available at: https://www.occ.gov/news-issuances/news-releases/2016/nr-ia-2016-107a.pdf (“620 Study”). Section 620 of the Dodd-Frank Act required the federal banking agencies to conduct a study and prepare a report, including recommendations, on the types of activities and investments permissible for banking entities, the associated risks, and how banking entities mitigate those risks. In a parallel action, the Board also issued a proposed rule in September 2016. The proposed Board rule addressed the physical commodities activities and investments of banking holding companies and financial holding companies, including copper. Risk-Based Capital and Other Regulatory Requirements for Activities of Financial Holding Companies Related to Physical Commodities and Risk-Based Capital Requirements for Merchant Banking Investments, 81 FR 67220 (Sept. 30, 2016).

    A national bank may engage in activities that are part of, or incidental to, the business of banking under 12 U.S.C. 24(Seventh). Section 24(Seventh) lists several activities that are part of the business of banking; for example, it expressly provides that national banks may buy and sell exchange, coin, and bullion. In addition to these enumerated powers, section 24(Seventh) authorizes national banks to exercise all such incidental powers as shall be necessary to carry on the business of banking. National banks also are authorized to engage in any other activities not expressly enumerated in the statute that the Comptroller of the Currency reasonably determines are part of the business of banking.4

    4 NationsBank of N.C., N.A. v. Var. Ann. Life. Ins. Co. (VALIC), 513 U.S. 251, 258-59 (1995).

    In Interpretive Letter 693,5 issued approximately twenty-one years ago, the OCC authorized national banks to buy and sell copper on the grounds that trading copper was becoming increasingly similar to trading gold, silver, platinum, and palladium. The letter observed that copper was traded in liquid markets; that it was traded in a form standardized as to weight and purity; and that the bank seeking authority to engage in the activity traded copper under policies and procedures similar to those that governed the bank's trading of precious metals. The letter concluded that national banks could buy and sell copper under the express authority to buy and sell coin and bullion and as part of or incidental to the business of banking. The scope of the authorization in Interpretive Letter 693 was sufficiently broad to permit national banks to buy and sell copper in the form of cathodes, which are used for industrial purposes.

    5 1995 WL 788816 (Nov. 14, 1995).

    In the NPRM, the OCC proposed to reconsider the interpretation set forth in Interpretive Letter 693.

    Now, the OCC is finalizing the NPRM and revising its regulations to prohibit national banks from dealing and investing in a metal (or alloy), including copper, in a form primarily suited to industrial or commercial use (industrial or commercial metal).6 The OCC has added a divestiture period to the final rule, provided clarifying language to the dealing and investing prohibition for national banks, and clarified federal savings associations' (FSA) authority to engage in activity that is not dealing or investing, but is otherwise finalizing the NPRM as proposed. The final rule: (i) Excludes industrial and commercial metals from the terms “exchange,” “coin,” and “bullion” in 12 U.S.C. 24(Seventh); and (ii) provides that dealing or investing in industrial or commercial metal is not part of, or incidental to, the business of banking. Examples of metals and alloys in a form primarily suited for industrial or commercial use include copper cathodes, aluminum T-bars, and gold jewelry. For the reasons stated in this preamble, the OCC has concluded that dealing or investing in these metals is not appropriate for national banks. The final rule supersedes Interpretive Letter 693.7

    6 The OCC considers the definition of industrial or commercial metal to include a warehouse receipt for such metal.

    7See Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 981-82 (2005) (agency reconsiderations of prior interpretations entitled to judicial deference so long as the agency adequately explains the reasons for the change); Motor Vehicle Manufacturers Association of the U.S., Inc. v. State Farm Mutual Automobile Insurance Company, 463 U.S. 29, 43 (1983) (“agency must examine the relevant data and articulate a satisfactory explanation for its action including a `rational connection between the facts found and the choice made' ”).

    The final rule also applies to FSAs. The Home Owners' Loan Act does not expressly authorize FSAs to buy or sell exchange, coin, and bullion.8 While FSAs have incidental authority to buy and sell precious metals in certain cases and to sell gold and silver coins minted by the U.S. Treasury, the OCC has not identified any precedent authorizing FSAs to buy and sell any industrial or commercial metal.9 The OCC does not interpret FSAs' powers to buy and sell metals to be broader than those of national banks.10 To avoid doubt, and to further integrate national bank and FSA regulations, the final rule prohibits FSAs from dealing or investing in industrial or commercial metal.11

    8See 12 U.S.C. 1464(c).

    9See, e.g., OTS Op. Ch. Couns. P-2006-1 (Mar. 6, 2006), 2006 WL 6195026 (engaging in precious metal transactions on behalf of customers); Gold Bullion Coin Transactions, 51 FR 34950 (Oct. 1, 1986); Letter from Jack D. Smith, Deputy General Counsel, Federal Home Loan Bank Board, 1988 WL 1021651 (May 18, 1988). All precedents (orders, resolutions, determinations, agreements, regulations, interpretive rules, interpretations, guidelines, procedures, and other advisory materials) made, prescribed, or allowed to become effective by the former Office of Thrift Supervision or its Director that apply to FSAs remain effective until the OCC modifies, terminates, sets aside, or supersedes those precedents. 12 U.S.C. 5414(b).

    10See OTS Op. Ch. Couns. P-2006-1 (Mar. 6, 2006), 2006 WL 6195026 (permissibility of FSA metal activity is evaluated under a four-part test referencing the activities of national banks).

    11 The final rule indirectly applies to federal branches and agencies of foreign banks because they operate with the same rights and privileges (and subject to the same duties, restrictions, penalties, liabilities, conditions, and limitations) as national banks. 12 CFR 28.13(a)(1). The final rule also indirectly applies to insured state banks and state savings associations. See 12 U.S.C. 1831a, 1831e.

    II. Summary of the Comments on the Notice of Proposed Rulemaking

    The OCC received four comments on the NPRM. Two comments were from financial industry trade associations and two were from individuals. While the comments generally were supportive of the NPRM, the trade association commenters requested that the OCC confirm the permissibility of certain lending and leasing transactions involving physical metals and expressed concern about the potential impact of the rulemaking on the liquidity of the copper market. A detailed discussion of the commenters' concerns and the OCC's response follows.

    A. Prohibition on Dealing and Investing for Industrial and Commercial Metal (Including Copper)

    Two commenters offered general views on the proposed dealing and investing prohibition for industrial and commercial metal, including copper, under the proposed rule. One was generally supportive of the NPRM's treatment of copper cathodes as an industrial and commercial metal. This commenter noted the proposal was consistent with banks' treatment of copper, as banks currently buy and sell copper based on its value for industrial and commercial purposes rather than as a store of value. The commenter also offered additional support for the rulemaking, noting that banks that own copper are exposed to large fluctuations in copper prices, encounter potential conflicts of interest between house positions and client positions, and may be able to manipulate copper markets through large physical positions. This commenter asserted that the proposed treatment is appropriate because bank copper trading activities more closely resemble commercial enterprises rather than a banking business. The commenter pointed to the PSI Report and 620 Study to support these comments.

    The second commenter expressed concern that the OCC has not demonstrated a compelling reason to change its 1995 copper interpretation. The commenter argued that the reasons the OCC approved copper activities in Interpretive Letter 693 are still valid today and that the OCC should not pursue the rulemaking in the absence of a compelling need or corresponding regulatory benefit. After carefully considering these comments, the OCC continues to believe that dealing or investing in copper cathodes, and other industrial or commercial metal, is not appropriate for national banks. As the OCC explained in the NPRM, events subsequent to Interpretive Letter 693 have confirmed copper is a base metal and thus, should be distinguished from precious metals that are not held in industrial or commercial form.12 For example, in 2000, the London Metals Exchange (“LME”) introduced a futures contract on a base metal index containing copper, aluminum, and zinc.13 In 2006, the LME followed with “mini” futures for copper, aluminum and zinc. By contrast, firms have launched exchange-traded funds (ETFs) that invest solely in gold, silver, palladium, platinum, or some combination thereof, indicating a widespread belief that these metals are a store of value. The OCC notes there are no copper ETFs. In addition, the OCC understands that national banks that trade copper treat it as a base metal and trade it alongside aluminum and zinc rather than gold and silver. Finally, the OCC considered the issues and risks identified in the PSI Report with respect to physical copper.14 The commenter's observations do not negate the information provided in the NPRM and these facts demonstrate that the OCC has adequately described its reasons for changing its 1995 interpretation.

    12 81 FR 63430, n.21.

    13 The LME describes itself as “the world centre for industrial metals trading.” See https://www.lme.com/.

    14See, e.g., PSI Report at 362-396.

    B. Physical Holdings

    The preamble to the NPRM explained that the OCC did not consider the proposed rule to prohibit national banks from buying or selling metal through a transitory title transfer entered into as part of a customer-driven financial intermediation business.15 The OCC explained that metal owned through a transitory title transfer typically does not entail physical possession of a commodity; the ownership occurs solely to facilitate the underlying transaction and lasts only for a moment in time. However, the OCC invited comment on whether transitory title transfers involving metals present risks that warrant treating such transactions as physical holdings.

    15 81 FR 63431.

    Three commenters addressed transitory title transfers. Two commenters generally supported the OCC's proposed treatment of transitory title transfers. One of these commenters agreed with the assertion in the NPRM that there is no physical possession of the metal in transitory title transfers. This commenter noted that the risks of legal liability typically associated with physical commodity positions are not present in transitory title transfers and that these transactions more closely resemble customer-driven, cash-settled commodity derivatives than physical positions. Another commenter also supported the treatment of transitory title transfers, but suggested the final rule text should limit transitory title transfers to customer-driven financial intermediation transactions that are part of the business of banking. A third commenter disagreed that transitory title transfers are different from dealing and investing in physical metal just because the bank holds the metal for a legal instant. As discussed in detail below, the OCC continues to believe that transitory title transfers do not entail physical possession of industrial and commercial metals. The OCC also notes that relevant precedent already provides that transitory title transfers must be part of a customer-driven financial intermediation business.16 Therefore, the OCC is finalizing the rule as proposed.

    16 Interpretive Letter 1073, 26 OCC Q.J. 46, 2007 WL 5122911 (Oct. 19, 2006).

    In addition to addressing transitory title transfers, one of the commenters also requested that the OCC confirm that interests in unallocated metal accounts are not physical holdings under the final rule. The commenter identified various activities in which national banks are engaged that could involve an interest in an unallocated metals account. The OCC notes that these activities are fact specific, and determinations about fact-specific activities need to be evaluated on a case-by-case basis. Therefore, the OCC believes it is appropriate to address the applicability of the final rule to these activities on a case-by-case basis. National banks with questions regarding the permissibility of transactions that involve unallocated metals accounts should discuss the issue with the OCC. The OCC is willing to entertain requests for such determinations, consistent with its historical practice of providing interpretive opinions in cases where there is doubt about the permissibility of particular activities.

    C. Reverse Repurchase Agreements

    The NPRM explained that the OCC views national banks' lending authority to include reverse repurchase agreements that are the functional and economic equivalent of secured loans.17 Banks may use commodity reverse repurchase agreements to finance customer inventory.18 Using a standard reverse repurchase agreement for metal to provide financing for a bank customer rather than a traditional bank loan ordinarily does not indicate dealing or investing in the metal. However, the NPRM noted that the facts and circumstances of a particular transaction may warrant a different conclusion. For example, if a bank incurs commodity price risk or pledges, sells, or rehypothecates metal acquired under reverse repurchase agreements, the NPRM provided that the OCC may view the transaction to be dealing or investing in the metal. The OCC invited comment on the treatment of reverse repurchase agreements under the proposed rule.

    17 81 FR 63431.

    18 12 CFR 211.4(a)(7).

    Two commenters addressed the treatment of reverse repurchase agreements. One suggested the OCC prohibit all reverse repurchase agreements where there is commodity market or liquidity risk. This commenter wrote that a prohibition is a better approach than a facts and circumstances review in light of limited OCC resources. The other commenter asserted that OCC should confirm that these types of reverse repurchase agreements are permissible activities not affected by the rule. This commenter noted that the reuse of the collateral is a long-standing practice in asset-based financing and therefore pledging, selling, or rehypothecating metal owned under a reverse repurchase agreement should not be viewed as indicia of dealing activity.

    The OCC continues to have concerns that reverse repurchase agreements that involve commodity price risk or that involve pledging, selling, or rehypothecating metal could be structured in some circumstances in a manner that constitutes dealing or investing activity. The OCC recognizes, as a commenter suggested, that banks may enter into hedges to mitigate price risk that exists at the conclusion of certain reverse repurchase agreements and may pledge collateral for the purpose of funding its customer financing activities. Structuring a transaction in these ways could, in some circumstances, reduce indicia of investing or dealing activity. However, the OCC does not believe it is appropriate to conclude that all reverse repurchase agreements that involve commodity price risk or pledging, etc. of collateral are permissible. Therefore, the OCC continues to believe that it is appropriate to evaluate reverse repurchase agreements that involve commodity price risk or pledging, etc. of collateral on a facts and circumstances basis, as appropriate. This approach will allow the OCC an opportunity to evaluate transactions in context and to consider relevant facts before reaching a determination as to whether a transaction involves dealing or investing. The OCC is therefore declining to make the changes the commenters have requested.

    D. Other Permissible Transactions

    The proposed rule identified two incidental authorities under which acquiring and selling metal would remain permissible for national banks: first, collateral foreclosure activities designed to mitigate loan losses; 19 second, nominal physical hedges of customer-driven commodity derivatives. The OCC also explained in the preamble to the NPRM that a bank may buy and sell metal in conjunction with certain leasing authorities.20

    19 81 FR 63433.

    20 81 FR 63431.

    One commenter addressed the proposed treatment of nominal hedging activities. This commenter suggested that the OCC require banks to disclose hedging amounts to the OCC. This commenter also suggested that the OCC require the hedge be designed to reduce risk in order to prevent commodity speculation. The OCC notes that it monitors bank hedging activity through its regular course of bank supervision. Additionally, banks that engage in commodity hedging activities already must do so in accordance with applicable law, including requirements that the hedge be designed to reduce risk.21 For these reasons, the OCC does not believe that the changes this commenter suggested are necessary.

    21See, e.g., Interpretive Letter 684 (Aug. 4, 1995) 1995 WL 550219; OCC Bulletin 2015-3 (Aug. 4, 2015); 12 CFR 44.3(b) and 44.5(a) (Volcker Rule requirement that hedges be designed to reduce or otherwise significantly mitigate one or more specific identifiable risks).

    Another commenter asked that the OCC modify the final rule to expressly permit certain metals-based financing activities. The commenter described several metal leasing and metal consignment transactions. As explained in the NPRM and below, banks may not buy and sell industrial or commercial metal for the purposes of dealing or investing in that metal. However, banks may continue to buy and sell industrial or commercial metal under other incidental authorities that do not involve dealing or investing. To the extent a bank proposes to engage in a metals-based transaction that presents an interpretive issue(s) under the authorities provided for in 12 U.S.C. 24(Seventh), the OCC will address permissibility on a facts and circumstances basis. The OCC may issue interpretive analysis, as appropriate.

    E. Existing Holdings

    The OCC solicited comment in the NPRM on the treatment of existing holdings of industrial and commercial metals. Specifically, the OCC asked whether five years to divest non-conforming assets, with the possibility of a five-year extension, would be an appropriate period of time. The OCC also asked whether there were compelling reasons to grandfather existing industrial and commercial metal holdings indefinitely.22

    22 81 FR 63432.

    Two commenters addressed the issue of existing holdings of industrial and commercial metal. One commenter argued industrial and commercial metal held before the conformance date should be grandfathered because doing so would limit negative effects on copper markets and bank customers. This commenter also asked that the text of the rule include a minimum of five years to conform to the prohibition, arguing this would minimize the impact of the rule. Another commenter did not support allowing the banks additional time to divest their physical metals holdings.

    National banks do not currently engage in significant dealing or investing activities in relation to physical industrial and commercial metal. Nor do national banks currently hold significant stores of industrial and commercial metal. Therefore, the OCC finds no compelling reason to grandfather existing activities. However, the OCC does believe that a short divestiture period would be appropriate. Given national banks' limited industrial and commercial metal activities, the OCC concludes that a full five-year divestiture period is not necessary. The OCC is therefore including a provision in the final rule that requires national banks to divest existing holdings of industrial and commercial metal acquired through dealing or investing activities as soon as practicable, but not later than one year from the effective date of the rule.23 This provision enables the OCC to grant up to four separate one-year extensions of this divestiture period if the bank has made a good faith effort to dispose of the metal and the bank's retention of the metal is not inconsistent with its safe and sound operation. The OCC notes that the approach of granting a divestiture period with the possibility of an extension is consistent with the OCC's treatment of other types of nonconforming assets.24 This divestiture provision applies only to existing holdings; national banks may not acquire additional holdings of industrial and commercial metal through dealing or investing activities during, or after, the divestiture period.

    23 The final rule provides a divestiture period for both national banks and FSAs. The OCC does not expect that a divestiture period will be necessary for FSAs and most national banks. However, in order to ensure an orderly asset liquidation process for all institutions that hold metal subject to this prohibition, the divestiture provision is available to both national banks and FSAs.

    24See, e.g., 12 U.S.C. 29 (holding period for other real estate owned).

    F. Impact of the Rule

    Three commenters discussed the impact of the proposed rule. Two commenters noted, very generally, that they expect the rule to increase cost for customers if finalized as proposed. One of these commenters also suggested the proposal would have a negative impact on the copper market as a whole, asserting that the costs of the rule will not be minimal. This commenter also argued there would be no regulatory benefit to this prohibition. Another commenter said the NPRM would reduce financial risk and conflicts of interests for banks while also allowing the OCC to impose limits on copper and other industrial and commercial metals.

    As noted above, national banks do not currently engage in significant dealing or investing activities in relation to physical industrial and commercial metal. Because these markets tend to be highly competitive, we expect that the removal of OCC-supervised institutions as just one class of potential investors/dealers will not have a material effect on these markets. Furthermore, as explained in more detail below, national banks may continue to buy and sell industrial and commercial metal under certain incidental authorities. The OCC expects these limited permissible activities will allow banks to continue to serve customers with interests in commercial and industrial metals in capacities that do not involve dealing or investing activities.

    III. Description of the Final Rule A. Industrial or Commercial Metal Is Not “exchange, coin, and bullion”

    As noted above, the National Bank Act authorizes national banks to buy and sell exchange, coin, and bullion. In this final rule, the OCC is interpreting these terms to exclude metals in a form primarily suited to industrial or commercial use.

    Banking Circular 58 (BC-58) 25 sets forth general guidelines that apply to national banks' coin and bullion activities. It defines “coin” as “coins held for their metallic value which are minted by a government, or exact restrikes of such coins minted at a later date by or under the authority of the issuing government.” Contemporaneous OCC interpretive letters elaborated that “coin” referred only to media of exchange.26 BC-58 defines “bullion” as “uncoined gold or silver in bar or ingot form.” These definitions do not encompass industrial or commercial metal.

    25 BC-58 (Rev.) (Nov. 3, 1981). The OCC published the original version in 1974.

    26 Interpretive Letter 326 (Jan. 17, 1985), 1985 WL 202590; Interpretive Letter 252 (Oct. 26, 1982), 1982 WL 54157; Letter from Peter Liebesman, Assistant Director, Legal Advisory Services Division (Feb. 18, 1982), 1982 WL 170844. But see Letter from Richard V. Fitzgerald, Deputy Chief Counsel (Nov. 4, 1983), 1983 WL 145720 (concluding that national banks could purchase and sell the Department of Treasury's commemorative Olympic coins based on their metallic value even though it was unlikely that the coins would be used as a medium of exchange).

    Interpretive letters published after BC-58 interpreted national banks' authority to buy coin and bullion to include other precious metals, namely platinum and palladium. Consistent with BC-58's definition of “coin,” the OCC in 1987 found that legal tender platinum coins held for their metallic value were “coin.” 27 That same letter prohibited dealing in platinum bars. However, in 1991, the OCC concluded that market developments warranted treating platinum bars as bullion.28 The OCC also found trading in platinum bars to be incidental to trading in platinum coins.29 For similar reasons, the OCC concluded palladium was coin and bullion and national banks could trade and deal in palladium as part of the business of banking.30 In support of its position, the OCC noted that the London Platinum and Palladium Market had linked platinum and palladium for market making and regulatory purposes and that most of the Market's members were banks.

    27 Letter from William J. Stolte, Chief National Bank Examiner (July 29, 1987), 1987 WL 149775.

    28 Interpretive Letter 553 (May 2, 1991), 1991 WL 340660 (noting that (i) the financial press considered platinum coins and bars to be bullion, and (ii) a state statute defined “bullion” to include platinum).

    29Id.

    30 Interpretive Letter 685 (Aug. 4, 1995), 1995 WL 550220.

    However, other interpretive letters recognized that not every precious metal is coin or bullion. Jewelry, the OCC determined, is not.31

    31See No-Objection Letter 88-8 (May 26, 1988), 1988 WL 284872 (selling gold and silver jewelry is impermissible general merchandising); Letter from Madonna K. Starr, Attorney (Oct. 3, 1986), 1986 WL 144029 (limited design jewelry is not exchange, coin, or bullion).

    The OCC has long concluded that “exchange, coin, and bullion” does not encompass industrial or commercial metal. The OCC believes this conclusion is consistent with the National Bank Act and current market practice. For example, in the mid-19th century, when Congress passed the National Bank Act, “bullion” meant metal suitable for coining, not metal suitable for making wires.32 The contemporary understanding of “bullion” is broader—most currency is no longer made of precious metal—but the contemporary understanding does distinguish bullion from industrial or commercial metal. For example, modern bullion markets trade precious metals by the kilogram.33 By contrast, industrial and commercial metals markets trade base metals in quantities suitable for industrial or commercial use.34 In general, gold, silver, platinum, and palladium are bullion today because they:

    32See Act of June 22, 1874, 18 Stat. 202 (authorizing the transfer from the U.S. bullion fund of refined gold bars bearing the United States stamp of fineness, weight, and value, or bars from any melt of foreign coin or bullion of standard equal to or above that of the United States); Act of Feb. 12, 1873 § 31, 17 Stat. 429 (“The bullion thus placed in the hands of the melter and refiner shall be subjected to the several processes which may be necessary to form it into ingots of the legal standard, and of a quality suitable for coinage.”).

    33See, e.g., London Bullion Market Association, The Good Delivery Rules for Gold and Silver Bars 11 (Mar. 2015), available at http://www.lbma.org.uk/assets/market/gdl/GD_Rules_15_Final%2020160512.pdf; London Platinum & Palladium Market, “The London/Zurich Good Delivery List,” http://www.lppm.com/good-delivery/ (visited July 19, 2016).

    34 The LME describes itself as the “world centre for the trading of industrial metals—more than three quarters of all non-ferrous metal futures business is transacted on [its] platforms.” LME, “About us,” http://www.lme.com/about-us (visited July 19, 2016). The LME trades aluminum, aluminum alloys, copper, lead, nickel, tin, and zinc. LME, “Metals,” http://www.lme.com/metals (visited July 19, 2016).

    • Trade in troy ounces or grams rather than metric tons; 35

    35See, e.g., Bloomberg, “Gold, Silver, and Industrial Metals Prices,” http://www.bloomberg.com/markets/commodities/futures/metals.

    • Trade in pure forms; 36

    36See, e.g., London Bullion Market Association, The Good Delivery Rules for Gold and Silver Bars 6 (Mar. 2015) (minimum fineness for gold is 99.5 percent and for silver is 99.9 percent); London Platinum & Palladium Market, “The London/Zurich Good Delivery List,” http://www.lppm.com/good-delivery/ (minimum fineness for platinum and palladium is 99.95 percent).

    • Trade in a form suitable for coining;

    • Trade as precious metals in the world's major organized markets, including the London bullion markets; and

    • Are considered currency by the International Organization for Standardization.37

    Gold, silver, platinum, and palladium in industrial or commercial form are not exchange, coin, or bullion.

    37 ISO 4217 (Aug. 1, 2015), available at http://www.currency-iso.org/dam/downloads/lists/list_one.xls.

    B. Dealing or Investing in Industrial or Commercial Metal Is Neither Part of, nor Incidental to, the Business of Banking

    Interpretive Letter 693 concluded that national banks could buy and sell copper (including industrial copper) as a part of or incidental to the business of banking. The OCC has reviewed the bases for the conclusion in Interpretive Letter 693 that buying and selling industrial copper is part of the business of banking, including developments in copper markets that followed this letter. For the following reasons, the OCC has determined that buying and selling copper—or any other metal—in industrial or commercial form for the purpose of dealing or investing in that metal is not part of the business of banking.

    When the OCC issued Interpretive Letter 693 in 1995, the agency noted increasing similarity between transactions involving copper and those transactions already conducted by national banks with respect to gold, silver, platinum and palladium (precious metals). This increasing similarity informed the OCC's view at that time that buying and selling copper, including dealing and investing, was part of, or incidental to, the business of banking. However, copper markets have not increased in similarity to precious metal markets.38 Instead, as noted in detail above, copper is generally traded as a base metal.39

    38 Events subsequent to Interpretive Letter 693 have confirmed copper's status as a base metal. In 2000, the LME introduced a future on a base metal index containing copper, aluminum, lead, nickel, tin, and zinc. Then, in 2006, it introduced “mini” futures for copper, aluminum, and zinc. Similarly, many firms have launched ETFs that invest solely in gold, silver, palladium, platinum, or some combination thereof, indicating a widespread belief that these metals are a store of value. However, there is no copper ETF. Finally, the OCC understands that national banks that trade copper treat it as a base metal and trade it alongside aluminum and zinc rather than gold and silver.

    39See generally PSI Report at 364 (2014) (identifying banks, trading firms, analysts, and exchanges that treat copper as a base metal for trading and risk management purposes).

    The OCC believes that dealing or investing in industrial or commercial metals, including base and precious metals in this form, is not the functional equivalent of dealing or investing in coin and bullion. The paradigmatic example of functional equivalence is that a lease is in economic substance a secured loan.40 But the significant differences between dealing in industrial or commercial metals and dealing in coin and bullion demonstrate that the former is not, in economic substance, the same as the latter. Most importantly, industrial and commercial metals trade in base metal markets by the ton in cathode or other industrial form, while coin and bullion trade in precious metal markets by the troy ounce or kilogram in bar or ingot form. In addition, banks' risk management systems distinguish between precious metals and base metals.

    40See M&M Leasing Corp. v. Seattle First Nat'l Bank, 563 F.2d 1377 (9th Cir. 1977).

    The OCC has also considered other factors identified in relevant precedent for determining whether dealing in or investing in industrial or commercial metal is part of the business of banking.41 The OCC does not believe that analysis under these factors supports a conclusion that this activity is part of the business of banking. For example, the OCC has not seen evidence that this activity strengthens a bank by benefiting its customers or its business.42 Nor is the OCC aware of any state-chartered banks dealing in or investing in industrial or commercial metal.43 Indeed, the OCC has not identified any precedent authorizing that activity for state banks. Such activity would suggest dealing or investing in commercial metals may be part of the business of banking.

    41See, e.g., Merchants' Nat'l Bank v. State Nat'l Bank, 77 U.S. 604, 648 (1871) (holding that national banks could certify checks because the activity had “grown out of the business needs of the country.”).

    42 Currently, national banks' dealing and investments in industrial or commercial metal are limited, suggesting that the business needs of the U.S. economy are not meaningfully affected by national banks' dealing in industrial or commercial metal. Nor is there evidence that the amount of revenue from industrial or commercial metal dealing and investing meaningfully improve national banks' financial strength. In any case, the prospect for additional revenue alone is not sufficient to deem an activity to be part of the business of banking. See VALIC, 513 U.S. at 258 n.2. See also No-objection Letter 88-8 (May 26, 1988), 1988 WL 284872 (concluding that it is impermissible for a national bank to make substantial profits from the sale of merchandise).

    43See Colorado Nat'l Bank v. Bedford, 310 U.S. 41, 49-50 (1940).

    As described above, under 12 U.S.C. 24(Seventh), a national bank has the power to exercise all such incidental powers as shall be necessary to carry on the business of banking. An activity is incidental to the business of banking if it is convenient or useful to an activity that is part of the business of banking.44

    44 Interpretive Letter 1071 (Sept. 6, 2006), 26 OCC Q.J. 46, 2007 WL 5122909 (citing Arnold Tours, Inc. v. Camp, 472 F.2d 427, 431-32 (1st Cir. 1972)).

    The OCC believes that dealing or investing in industrial or commercial metal is not incidental to the business of banking. Some customers may wish to trade industrial or commercial metal with national banks. However, because few banks buy or sell industrial or commercial metal in the ordinary course of business, it does not appear that dealing or investing in industrial or commercial metal significantly enhances national banks' ability to offer banking products and services, including those related to precious metals. Moreover, dealing or investing in industrial or commercial metal does not appear to enable national banks to use capacity acquired for banking operations or otherwise avoid economic loss or waste. Therefore, the OCC concludes national banks may not deal or invest in industrial or commercial metal under their incidental powers.

    C. Transactions in Industrial or Commercial Metal That May Be Permissible

    National banks do have incidental authority to buy and sell industrial or commercial metal in limited cases. Buying or selling industrial or commercial metal could be incidental to lending activities. For example, a mining company could post a copper cathode as collateral for a loan. Pursuant to the national bank's authority to acquire property in satisfaction of debt previously contracted, the bank could seize and then sell the copper to mitigate loan losses if the borrower defaulted.45 National banks also have incidental authority to buy and sell nominal amounts of industrial or commercial metal to hedge customer-driven commodity derivatives.46 The final rule does not prohibit these purchases and sales because they are not dealing or investing.47

    45Cf. Cooper v. Hill, 94 F. 582 (8th Cir. 1899) (foreclosure of a mine); First Nat'l Bank of Parker v. Peavy Elevator Co., 10 S.D. 167, 170 (1897) (foreclosure of grain seed and subsequent sale).

    46 Interpretive Letter 684 (Aug. 4, 1995) (permitting physical delivery of commodities as hedges for customer-driven, non-speculative transactions), 1995 WL 550219; OCC Bulletin 2015-35, Quantitative Limits on Physical Commodity Transactions (Aug. 4, 2015) (explaining that “nominal” means 5 percent of the bank's short positions in a particular commodity). The final rule explicitly provides that national banks may continue to buy and sell physical metal to hedge a derivative. A similar provision is not necessary for FSAs because they do not engage in this activity. See 620 Study at 88; OCC Bulletin 2015-35, n. 1.

    47Cf. First Nat'l Bank v. Nat'l Exch. Bank, 92 U.S. 122, 128 (1875) (“In the honest exercise of the power to compromise a doubtful debt owing to a bank, it can hardly be doubted that stocks may be accepted in payment and satisfaction, with a view to their subsequent sale or conversion into money so as to make good or reduce an anticipated loss. Such a transaction would not amount to a dealing in stocks. It was, in effect, so decided in Fleckner v. Bank U.S., 8 Wheat. 351 [22 U.S. 338 (1823)], where it was held that a prohibition against trading and dealing was nothing more than a prohibition against engaging in the ordinary business of buying and selling for profit, and did not include purchases resulting from ordinary banking transactions.”).

    Similarly, national banks may buy and sell industrial or commercial metal as part of their leasing business. 12 U.S.C. 24(Seventh); 12 U.S.C. 24(Tenth); 12 CFR 23.4. A car, for example, contains metal in a commercial form, but buying a car to lease it is not dealing or investing in commercial metal. Rather, a lease, like a reverse repurchase transaction, is a secured loan in a different form. National banks may also buy and sell industrial or commercial metals to install pipes and electrical wiring in their physical premises. 12 U.S.C. 29(First); 12 CFR 7.1000. This activity is clearly not dealing or investing in industrial or commercial metal.

    In certain situations, national banks may buy and sell industrial and commercial metal as reverse repurchase agreements that are the functional and economic equivalent of secured loans.48 In a reverse repurchase agreement, a bank extends credit by simultaneously buying collateral from a client and agreeing to sell the collateral back to the client at a future date. The difference between the sale and purchase price is effectively the interest the client pays for the extension of credit. If the reverse repurchase agreement counterparty defaults, the bank can mitigate its losses by selling the collateral without first foreclosing on it. Financing customer inventory is a traditional bank activity; using reverse repurchase agreements rather than loans to provide the financing is merely a different way of providing financing.49 Financing customer inventory using reverse repurchase agreements in itself does not indicate dealing or investing in the metal. However, pledging, selling, or rehypothecating metal acquired under reverse repurchase agreements could suggest dealing or investing activity. So, too, could assuming commodity price risk. For example, an agreement in which the counterparty sells a metal at a certain price to the bank and then repurchases the metal at a price that depends on the metal's then-current market price could indicate dealing or investing activity: The bank is assuming the metal's price risk and, in some circumstances, could act to benefit from spot market price appreciation of the metal. On the other hand, setting the repurchase price at the sale price plus a spread based on the time value of money is equivalent to a secured loan. The determination of whether a reverse repurchase agreement that varies from this secured loan structure is dealing or investing is highly dependent upon the facts of each transaction. National banks with questions regarding the permissibility of reverse repurchase agreements that involve characteristics identified in this discussion should discuss the issue with the OCC. The OCC is willing to entertain requests for such determinations, consistent with its historical practice of providing interpretive opinions in cases where there is doubt about the permissibility of particular activities.

    48See 12 CFR 211.4(a)(7)

    49 Under the National Bank Act, credit exposures from repurchase and reverse repurchase agreements are loans and extensions of credit subject to a national bank's lending limits. 12 U.S.C. 84(b)(1)(C). We note that Section 610 of the Dodd-Frank Act expanded the definition of “loans and extensions of credit” for purposes of lending limits to include credit exposure arising from repurchase agreements and reverse repurchase agreements, among other transactions. The OCC amended its lending limits regulation, 12 CFR 32, to implement the statutory change made by the Dodd-Frank Act.

    The final rule does not prohibit national banks from buying and selling metal through transitory title transfers entered into as part of a customer-driven financial intermediation business.50 Interpretive Letter 1073 51 provides that national banks may hedge metal derivative transactions on a portfolio basis with over-the-counter derivative transactions that settle in cash or transitory title transfer. Interpretive Letter 1073 also provides that a national bank may engage in transitory title transfers in metals for the accommodation of customers. The OCC concluded in Interpretive Letter 1073 that transitory title transfers involving metals do not entail the physical possession of commodities.52 The OCC's analysis in this letter noted that transitory title transfers do not involve the customary activities relating to, or risks attendant to, commodity ownership, such as storage costs, insurance, and environmental protection. For these reasons, OCC believes that transitory title transfers do not constitute physical possession of commodities and therefore does not consider transitory title transfers to be dealing or investing in industrial or commercial metal for purposes of the final rule.53 The OCC recognizes that banks may have questions about the permissibility of specific transitory title transfer transactions. The fact-specific nature of these issues merits a case-by-case review to determine the permissibility of the transaction. The OCC will continue to review requests for interpretive opinions on the permissibility of individual transactions proposed by a bank. Should the OCC become aware of additional risks that suggest transitory title transfer activity presents risks more closely akin to the risks of physical metal holdings, the OCC may reconsider the treatment of transitory title transfer transactions.

    50 For purposes of the final rule, the OCC considers a transitory title transfer to be back-to-back contracts providing for the receipt and immediate transfer of title to the metal. This means that a bank holds title to the metal for no more than a legal instant. See Interpretive Letter 962 (Apr. 21, 2003), 2003 WL 21283155 (“[T]ransitory title transfers preclude actual delivery by passing title down the chain from the initial seller to the ultimate buyer in a series of instantaneous back-to-back transactions. Each party in the chain has title for an instant but does not take actual physical delivery (other than the ultimate buyer which, in no case, will be the Bank.”)).

    51 26 OCC Q.J. 46, 2007 WL 5122911 (Oct. 19, 2006).

    52See also OCC Bulletin 2015-35 (Aug. 4, 2015) (noting that a physical commodity that a bank acquired and then immediately sold by transitory title transfer would not be included in the bank's physical inventory of that commodity).

    53 In contrast to transitory title transfers, the OCC considers a commodity held by warehouse receipt for more than a legal instant to entail physical possession of the commodity. See OCC Bulletin 2015-35 (“[A] bank that satisfies certain conditions may engage in physical commodity transactions (for example, by buying or selling title to a commodity via a warehouse receipt or bill of lading) to manage the risks of commodity derivatives.”); Interpretive Letter 684 (Aug. 4, 1995), 1995 WL 550219 (recognizing physical possession of a commodity by warehouse receipt). The OCC notes that the customary activities relating to, or risks attendant to, commodity ownership by warehouse receipt are distinguishable from those involving transitory title transfer. For example, Interpretive Letter 684 provides that the OCC expects a bank engaged in physical commodity hedging, either through warehouse receipt or “pass-through” delivery, to adopt and maintain “safeguards designed to manage the risks associated with storing, transporting, and disposing of commodities of which the bank has taken delivery, including policies and procedures designed to ensure that the bank has adequate levels of insurance (including insurance for environmental liabilities) which, after deductions, are commensurate with the risks assumed.”

    D. Divestiture Period

    The final rule prohibits banks from dealing or investing in industrial or commercial metal. However, in response to a request from a commenter, the final rule provides a divestiture period for banks that acquired industrial or commercial metal through dealing or investing in that metal before the effective date of the rule.54 Under the divestiture provision, banks must dispose of such metal as soon as practicable, but not later than one year from the effective date of the regulation. The OCC may grant up to four separate one-year extensions of this divestiture period for a national bank that makes a good faith effort to dispose of the metal and the bank's retention of the metal is not inconsistent with its safe and sound operation. The divestiture provision applies only to existing holdings; national banks may not acquire additional holdings of industrial and commercial metal through dealing or investing activities during, or after, the divestiture period.

    54 The final rule provides a divestiture period for both national banks and FSAs. The OCC does not expect that a divestiture period will be necessary for FSAs and most national banks. However, in order to ensure an orderly liquidation process for all institutions that hold metal subject to this prohibition, the divestiture provision is available to both national banks and FSAs.

    This divestiture period is generally consistent with the OCC's approach to other nonconforming assets. Banks with questions about the permissibility of activities or holdings involving industrial or commercial metal should ask the OCC for a review of the specific holding or activity.

    IV. Regulatory Analysis Paperwork Reduction Act

    Under the Paperwork Reduction Act, 44 U.S.C. 3501-3520, the OCC may not conduct or sponsor, and a person is not required to respond to, an information collection unless the information collection displays a valid Office of Management and Budget (OMB) control number. This final rule does not introduce any new collections of information, therefore, it does not require a submission to OMB.

    Regulatory Flexibility Act

    The Regulatory Flexibility Act, 5 U.S.C. 601 et seq., (RFA), requires an agency, in connection with a final rule, to prepare a Final Regulatory Flexibility Analysis describing the impact of the rule on small entities (defined by the Small Business Administration (SBA) for purposes of the RFA to include banking entities with total assets of $550 million or less) or to certify that the rule will not have a significant economic impact on a substantial number of small entities.

    As of December 31, 2015, the OCC supervised 1,032 small entities.55 Although the rule applies to all OCC-supervised small entities, and thus affects a substantial number of small entities, no small entities supervised by the OCC currently buy or sell metal in a physical form primarily suited to commercial or industrial use for the purpose of dealing or investing in that metal. Thus, the rule will not have a substantial impact on any OCC-supervised small entities.

    55 The OCC calculated the number of small entities using the SBA's size thresholds for commercial banks and savings institutions, and trust companies, which are $550 million and $38.5 million, respectively. Consistent with the General Principles of Affiliation, 13 CFR 121.103(a), the OCC counted the assets of affiliated financial institutions when determining whether to classify a national bank or FSA as a small entity. The OCC used December 31, 2015, to determine size because a “financial institution's assets are determined by averaging the assets reported on its four quarterly financial statements for the preceding year.” See footnote 8 of the SBA's Table of Size Standards.

    Therefore, the OCC certifies that the final rule will not have a significant economic impact on a substantial number of OCC-supervised small entities.

    Unfunded Mandates Reform Act of 1995 Determination

    The OCC analyzed the final rule under the factors set forth in the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532). Under this analysis, the OCC considered whether the rule includes a federal mandate that may result in the expenditure by state, local, and Tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year (adjusted annually for inflation).

    Although the final rule would apply to all OCC-supervised institutions, very few of these institutions are currently involved in activities involving dealing or investing in copper or other metals in a physical form primarily suited to commercial or industrial use.

    While the final rule may prevent OCC-supervised institutions from realizing potential gains from prohibited investments in physical metals, the rule also may protect them from realizing potential losses from investments in physical metals. The OCC is not able to estimate these potential gains or losses because they will depend on future fluctuations in the prices of the various physical metals. However, the OCC does expect OCC-supervised institutions to be able to achieve comparable returns in alternative non-prohibited investment opportunities. Thus, the OCC estimates that the opportunity cost of the final rule will be near zero.

    The final rule may impose one-time costs on affected institutions with respect to the disposal of current physical metal inventory that a bank may not deal in or invest in under the rule. This cost will depend to some extent on the amount of physical metal inventory that affected institutions must dispose of. Given the divestiture period in the final rule, a gradual sell-off should not affect market prices and the affected institutions would receive fair value for their metals. Under these circumstances, the OCC estimates that the disposal costs will also be minimal.

    Finally, by establishing that buying and selling physical metal in commercial or industrial form is generally not part of the business of banking, the rule implies that customers of OCC-supervised institutions will have to identify another reliable source of supply of physical metals and that OCC-supervised institutions will be less able to compete with non-bank metals dealers. Given how technology has made the physical metals markets more accessible, the OCC expects bank customers will face minimal costs associated with identifying another supplier of physical metals. The OCC also expects that losing the ability to compete with non-bank metal dealers will not significantly detract from the strength of OCC-supervised institutions, especially given that the final rule would recognize several business-of-banking incidental exceptions to the prohibition on buying and selling physical metal. These permissible activities should enable OCC-supervised institutions to continue to provide metals related services to bank customers that do not involve dealing or investing in commercial and industrial metals.

    For the reasons described above, the OCC has determined that the final rule would not result in expenditures by state, local, and Tribal governments, or by the private sector, of $100 million or more. Accordingly, the OCC has not prepared a written statement to accompany the final rule.

    List of Subjects in 12 CFR Part 7

    Banks, banking, Computer technology, Credit, Federal savings associations, Insurance, Investments, Metals, National banks, Reporting and recordkeeping requirements, Securities, Surety bonds.

    For the reasons set forth in the preamble, OCC amends 12 CFR part 7 as follows:

    PART 7—ACTIVITIES AND OPERATIONS 1. The authority citation for part 7 is revised to read as follows: Authority:

    12 U.S.C. 1 et seq., 25b, 71, 71a, 92, 92a, 93, 93a, 371, 371a, 481, 484, 1463, 1464, 1818, and 5412(b)(2)(B).

    2. Add § 7.1022 to subpart A to read as follows:
    § 7.1022 National banks' authority to buy and sell exchange, coin, and bullion.

    (a) In this section, industrial or commercial metal means metal (including an alloy) in a physical form primarily suited to industrial or commercial use, for example, copper cathodes.

    (b) Scope of authorization. Section 24(Seventh) of the National Bank Act authorizes national banks to buy and sell exchange, coin, and bullion. Industrial or commercial metal is not exchange, coin, and bullion within the meaning of this authorization.

    (c) Buying and selling metal as part of or incidental to the business of banking. Section 24(Seventh) authorizes national banks to engage in activities that are part of, or incidental to, the business of banking. Buying and selling industrial or commercial metal for the purpose of dealing or investing in that metal is not part of or incidental to the business of banking pursuant to section 24(Seventh). Accordingly, national banks may not acquire industrial or commercial metal for purposes of dealing or investing.

    (d) Other authorities not affected. This section shall not be construed to preclude a national bank from acquiring or selling metal in connection with its incidental authority to foreclose on loan collateral, compromise doubtful claims, or avoid loss in connection with a debt previously contracted. This section also shall not be construed to preclude a national bank from buying and selling physical metal to hedge a derivative for which that metal is the reference asset so long as the amount of the physical metal used for hedging purposes is nominal.

    (e) Nonconforming holdings. National banks that hold industrial or commercial metal as a result of dealing or investing in that metal shall dispose of such metal as soon as practicable, but not later than one year from the effective date of this regulation. The OCC may grant up to four separate one-year extensions to dispose of industrial or commercial metal if a national bank makes a good faith effort to dispose of the metal and retention of the metal for an additional year is not inconsistent with the safe and sound operation of the bank.

    3. Add § 7.1023 to subpart A to read as follows:
    § 7.1023 Federal savings associations, prohibition on industrial or commercial metal dealing or investing.

    (a) In this section, industrial or commercial metal means metal (including an alloy) in a physical form primarily suited to industrial or commercial use, for example, copper cathodes.

    (b) Federal savings associations may not deal or invest in industrial or commercial metal.

    (c) Other authorities not affected. This section shall not be construed to preclude a federal savings association from acquiring or selling metal in connection with its authority to foreclose on loan collateral, compromise doubtful claims, or avoid loss in connection with a debt previously contracted.

    (d) Nonconforming holdings. Federal savings associations that hold industrial or commercial metal as a result of dealing or investing in that metal shall dispose of such metal as soon as practicable, but not later than one year from the effective date of this regulation. The OCC may grant up to four separate one-year extensions to dispose of industrial or commercial metal if a federal savings association makes a good faith effort to dispose of the metal and retention of the metal for an additional year is not inconsistent with safe and sound operation of the association.

    Dated: December 15, 2016. Thomas J. Curry, Comptroller of the Currency.
    [FR Doc. 2016-31572 Filed 12-29-16; 8:45 am] BILLING CODE 4810-33-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2015-3142; Directorate Identifier 2015-NM-003-AD; Amendment 39-18728; AD 2016-25-02] RIN 2120-AA64 Airworthiness Directives; The Boeing Company Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule; correction.

    SUMMARY:

    The FAA is correcting an airworthiness directive (AD) that published in the Federal Register. That AD applies to certain The Boeing Company Model 787-8 airplanes. As published, the amendment number specified in the preamble and regulatory text is incorrect. This document corrects that error. In all other respects, the original document remains the same.

    DATES:

    This final rule is effective January 20, 2017.

    The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of January 20, 2017 (81 FR 90955, December 16, 2016).

    ADDRESSES:

    For service information identified in this final rule, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740; telephone 562-797-1717; Internet https://www.myboeingfleet.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-3142.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The address for the Docket Office (phone: 800-647-5527) is Docket Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

    FOR FURTHER INFORMATION CONTACT:

    Fnu Winarto, Aerospace Engineer, Systems and Equipment Branch, ANM-130S, FAA, Seattle Aircraft Certification Office (ACO), 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6659; fax: 425-917-6590; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Airworthiness Directive 2016-25-02 (81 FR 90955, December 16, 2016), requires installing markers to limit the hydraulic system fluid used to a specific brand, doing hydraulic fluid tests of the hydraulic systems, replacing hydraulic system fluid if necessary, and doing all applicable related investigative and corrective actions for certain The Boeing Company Model 787-8 airplanes.

    Need for the Correction

    As published, the amendment number specified in the preamble and regulatory text is incorrect. The incorrectly specified number was Amendment 39-18725; the correct number is Amendment 39-18728.

    Related Service Information Under 1 CFR Part 51

    We have reviewed Boeing Alert Service Bulletin B787-81205-SB270026-00, Issue 002, dated June 13, 2016. This service information describes procedures for installing markers to limit the hydraulic system fluid used to a specific brand, doing hydraulic fluid tests of the hydraulic systems, replacing the hydraulic system fluid if necessary, and related investigative and corrective actions. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    Correction of Publication

    This document corrects an error and correctly adds the AD as an amendment to 14 CFR 39.13. Although no other part of the preamble or regulatory information has been corrected, we are publishing the entire rule in the Federal Register.

    The effective date of this AD remains January 20, 2017.

    Since this action only corrects an amendment number, it has no adverse economic impact and imposes no additional burden on any person. Therefore, we have determined that notice and public procedures are unnecessary.

    List of Subjects in 14 CFR Part 39

    Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.

    Adoption of the Correction

    Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration amends part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:

    PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority:

    49 U.S.C. 106(g), 40113, 44701.

    § 39.13 [Corrected]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2016-25-02 The Boeing Company: Amendment 39-18728; Docket No. FAA-2015-3142; Directorate Identifier 2015-NM-003-AD. (a) Effective Date

    This AD is effective January 20, 2017.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to The Boeing Company Model 787-8 series airplanes, certificated in any category, as identified in Boeing Alert Service Bulletin B787-81205-SB270026-00, Issue 002, dated June 13, 2016.

    (d) Subject

    Air Transport Association (ATA) of America Code 27, Flight Control Systems.

    (e) Unsafe Condition

    This AD was prompted by reports of the accumulation of very fine particle deposits in the power control unit (PCU) electro-hydraulic servo valves (EHSVs) used in the flight control system; this accumulation caused degraded performance due to reduced EHSV internal hydraulic supply pressures, resulting in the display of PCU fault status messages from the engine indication and crew alerting system (EICAS). We are issuing this AD to prevent failure of flight control hydraulic PCUs, which could lead to reduced controllability of the airplane.

    (f) Compliance

    Comply with this AD within the compliance times specified, unless already done.

    (g) Marker Installation

    Within 36 months after the effective date of this AD, install markers to allow servicing of hydraulic systems with only HyJet V hydraulic fluid, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin B787-81205-SB270026-00, Issue 002, dated June 13, 2016.

    Note 1 to paragraph (g) of this AD:

    Boeing Alert Service Bulletin B787-81205-SB270026-00, Issue 002, dated June 13, 2016, refers to Boeing Service Bulletin B787-81205-SB290022-00, Issue 001, dated September 4, 2014, as an additional source of guidance for installing markers to allow servicing of hydraulic systems with only HyJet V hydraulic fluid.

    Note 2 to paragraph (g) of this AD:

    Task 1, Figure 1, and Task 2, Figure 1, of Boeing Service Bulletin B787-81205-SB290022-00, Issue 001, dated September 4, 2014, identify P/N 710Z7290-9##ALT1 for the left and right engine diagonal braces; however, the correct P/N is 710Z7290-9 with no ##ALT suffix.

    (h) Fluid Tests of the Left, Right, and Center Hydraulic Systems

    For airplanes identified in Boeing Alert Service Bulletin B787-81205-SB270026-00, Issue 002, dated June 13, 2016, as Group 1, Configuration 2, Group 2: Within 36 months after the effective date of this AD, do hydraulic fluid tests of the left, right, and center hydraulic systems, replace the hydraulic system fluid, if necessary, and do all applicable related investigative and corrective actions, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin B787-81205-SB270026-00, Issue 002, dated June 13, 2016. Do all applicable related investigative and corrective actions within 36 months after the effective date of this AD.

    (i) Credit for Previous Actions

    This paragraph provides credit for the actions required by paragraphs (g) and (h) of this AD, if those actions were performed before the effective date of this AD using Boeing Alert Service Bulletin B787-81205-SB270026-00, Issue 001, dated November 25, 2014.

    (j) Alternative Methods of Compliance (AMOCs)

    (1) The Manager, Seattle Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in paragraph (k)(1) of this AD. Information may be emailed to: [email protected]

    (2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.

    (3) For service information that contains steps that are labeled as Required for Compliance (RC), the provisions of paragraphs (j)(3)(i) and (j)(3)(ii) apply.

    (i) The steps labeled as RC, including substeps under an RC step and any figures identified in an RC step, must be done to comply with the AD. If a step or sub-step is labeled “RC Exempt,” then the RC requirement is removed from that step or sub-step. An AMOC is required for any deviations to RC steps, including substeps and identified figures.

    (ii) Steps not labeled as RC may be deviated from using accepted methods in accordance with the operator's maintenance or inspection program without obtaining approval of an AMOC, provided the RC steps, including substeps and identified figures, can still be done as specified, and the airplane can be put back in an airworthy condition.

    (4) An AMOC that provides an acceptable level of safety may be used for any repair required by this AD if it is approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) that has been authorized by the Manager, Seattle ACO, to make those findings. For a repair method to be approved, the repair must meet the certification basis of the airplane, and the approval must specifically refer to this AD.

    (k) Related Information

    (1) For more information about this AD, contact Fnu Winarto, Aerospace Engineer, Systems and Equipment Branch, ANM-130S, FAA, Seattle ACO, 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6659; fax: 425-917-6590; email: [email protected]

    (2) Service information identified in this AD that is not incorporated by reference is available at the addresses specified in paragraphs (l)(4) and (l)(5) of this AD.

    (l) Material Incorporated by Reference

    (1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.

    (2) You must use this service information as applicable to do the actions required by this AD, unless this AD specifies otherwise.

    (3) The following service information was approved for IBR on January 20, 2017 (81 FR 90955, December 16, 2016).

    (i) Boeing Alert Service Bulletin B787-81205-SB270026-00, Issue 002, dated June 13, 2016.

    (ii) Reserved.

    (4) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740; telephone 562-797-1717; Internet https://www.myboeingfleet.com.

    (5) You may view this service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.

    (6) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal-register/cfr/ibr-locations.html.

    Issued in Renton, Washington, on December 22, 2016. Robert D. Breneman, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-31693 Filed 12-29-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2015-3753; Directorate Identifier 2015-NE-26-AD; Amendment 39-18739; AD 2016-25-13] RIN 2120-AA64 Airworthiness Directives; Safran Helicopter Engines, S.A. (Formerly Turbomeca S.A.) Turboshaft Engines AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    We are superseding airworthiness directive (AD) 2016-04-12, that applies to certain Safran Helicopter Engines, S.A. (formerly Turbomeca S.A.) Arriel 2B, 2B1, 2C, 2C1, 2C2, 2D, 2E, 2S1, and 2S2 turboshaft engines. AD 2016-04-12 required spectrometric oil analysis (SOA) inspection of the engine accessory gearbox (AGB), and, depending on the results, removal of the engine AGB. This AD requires initial and repetitive wear inspections of the engine AGB cover. This AD was prompted by a report of an uncommanded in-flight shutdown (IFSD) of an Arriel 2S2 engine caused by rupture of the 41-tooth gear, which forms part of the bevel gear in the engine AGB. We are issuing this AD to correct the unsafe condition on these products.

    DATES:

    This AD is effective February 3, 2017.

    The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of February 3, 2017.

    ADDRESSES:

    For service information identified in this final rule, contact Safran Helicopter Engines, S.A. 40220 Tarnos, France; phone: 33 0 5 59 74 40 00; fax: 33 0 5 59 74 45 15. You may view this service information at the FAA, Engine & Propeller Directorate, 1200 District Avenue, Burlington, MA. For information on the availability of this material at the FAA, call 781-238-7125. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-3753.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-3753; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the mandatory continuing airworthiness information (MCAI), regulatory evaluation, any comments received, and other information. The address for the Docket Office (phone: 800-647-5527) is Document Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

    FOR FURTHER INFORMATION CONTACT:

    Philip Haberlen, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7770; fax: 781-238-7199; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Discussion

    We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2016-04-12, Amendment 39-18406 (81 FR 12583, March 10, 2016), (“AD 2016-04-12”). AD 2016-04-12 applied to the specified products. The NPRM published in the Federal Register on June 17, 2016 (81 FR 39601). The NPRM proposed to require initial and repetitive spectrometric oil analysis (SOA) of the AGB, and wear inspections of the engine AGB cover. However, this AD only mandates wear inspections of the engine AGB cover and does not add requirements beyond the scope of the NPRM.

    Comments

    We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM (81 FR 39601, June 17, 2016).

    Since we issued AD 2016-04-12, the European Aviation Safety Agency (EASA) has issued MCAI European Aviation Safety Agency AD 2016-0055R1, dated October 11, 2016, to only specify that periodic wear inspections of the engine AGB cover are necessary. This AD removes the proposed requirements for initial and repetitive SOA of the AGB, which reduces the costs of compliance in this AD.

    Also since we issued AD 2016-04-12, Safran Helicopter Engines, S.A. has issued Mandatory Service Bulletin (MSB) No. 292 72 2861, Version D, dated September 23, 2016. The MSB only requires performing periodic wear inspections of the engine AGB cover.

    Conclusion

    We reviewed the available data and determined that air safety and the public interest require adopting this AD with the changes described previously. We determined that these changes will not increase the economic burden on any operator or increase the scope of this AD.

    Related Service Information Under 1 CFR Part 51

    Safran Helicopter Engines, S.A. has issued MSB No. 292 72 2861, Version D, dated September 23, 2016. The MSB describes procedures for performing periodic wear inspections of the engine AGB cover. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    Costs of Compliance

    We estimate that this AD affects 250 engines installed on helicopters of U.S. registry. We also estimate that it will take 1 hour to perform the engine AGB cover wear inspection. The average labor rate is $85 per hour. Required parts for the wear inspection cost about $3,100 per engine. We estimate that 5 engines will require AGB replacement at a cost of $44,397 per engine. We also estimate that it will take about 2 hours to replace the engine AGB. Based on these figures, we estimate the cost of this AD on U.S. operators to be $1,019,085.

    Authority for This Rulemaking

    Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.

    We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

    Regulatory Findings

    This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

    For the reasons discussed above, I certify that this AD:

    (1) Is not a “significant regulatory action” under Executive Order 12866,

    (2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),

    (3) Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction, and

    (4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

    List of Subjects in 14 CFR Part 39

    Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.

    Adoption of the Amendment

    Accordingly, under the authority delegated to me by the Administrator, the FAA amends part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:

    PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority:

    49 U.S.C. 106(g), 40113, 44701.

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by removing airworthiness directive (AD) AD 2016-04-12, Amendment 39-18406 (81 FR 12583, March 10, 2016), and adding the following new AD: 2016-25-13 Safran Helicopter Engines, S.A. (Type Certificate previously held by Turbomeca S.A.): Amendment 39-18739; Docket No. FAA-2015-3753; Directorate Identifier 2015-NE-26-AD. (a) Effective Date

    This AD is effective February 3, 2017.

    (b) Affected ADs

    This AD supersedes AD 2016-04-12, Amendment 39-18406 (81 FR 12583, March 10, 2016).

    (c) Applicability

    This AD applies to Safran Helicopter Engines, S.A. Arriel 2B, 2B1, 2C, 2C1, 2C2, 2D, 2E, 2S1, and 2S2 turboshaft engines with an engine accessory gearbox (AGB), part number 0292120650, with a machined front casing.

    (d) Unsafe Condition

    This AD was prompted by a report of an uncommanded in-flight shutdown (IFSD) of an Arriel 2S2 engine caused by rupture of the 41-tooth gear, which forms part of the bevel gear in the engine AGB. We are issuing this AD to prevent failure of the engine AGB, uncommanded IFSD, damage to the engine, and damage to the helicopter.

    (e) Compliance

    Comply with this AD within the compliance times specified, unless already done.

    (1) Initial Wear Inspection

    (i) For all affected engines, perform a wear inspection of the engine AGB cover before the engine AGB, module M01, exceeds 850 engine hours (EH) since new or since last overhaul (SLO), or within 50 EHs after April 14, 2016, or before the next flight after the effective date of this AD, whichever occurs latest.

    (ii) Reserved.

    (2) Repetitive Wear Inspection Intervals

    (i) For Arriel 2E engines, repeat the engine AGB cover wear inspection within every 800 EH since last inspection (SLI).

    (ii) For all affected engines, except for Arriel 2E engines, repeat the engine AGB cover wear inspection within every 600 EH SLI.

    (3) Inspection Criteria

    (i) Use paragraph 2.4.2 of Safran Helicopter Engines, S.A. Mandatory Service Bulletin (MSB) No. 292 72 2861, Version D, dated September 23, 2016, to do the inspections required by paragraphs (e)(1) and (e)(2) of this AD.

    (ii) Reserved.

    (4) Corrective Actions Based on the Results of the Most Recent Wear Inspection

    (i) If the wear measured from the most recent wear inspection is 0.15 mm or less, no further action is required. However, you must still comply with the repetitive inspection requirements of paragraph (e)(2) of this AD.

    (ii) If the most recent wear inspection was performed while the engine was in service, and the wear is greater than 0.15 mm, do the following:

    (A) If the wear measured from the most recent wear inspection is greater than 0.15 mm, but 0.30 mm or less, remove the engine AGB from service within 200 EH SLI and replace with a part eligible for installation.

    (B) If the wear measured from the most recent wear inspection is greater than 0.30 mm, but 0.40 mm or less, remove the engine AGB from service within 25 EH SLI and replace with a part eligible for installation.

    (C) If the wear measured from the most recent wear inspection is greater than 0.40 mm, remove the engine AGB from service before further flight and replace with a part eligible for installation.

    (iii) If the most recent wear inspection was performed on the engine during an engine shop visit, and the wear is greater than 0.15 mm, remove the engine AGB before further flight and replace with a part eligible for installation.

    (f) Credit for Previous Action

    If you have previously performed a wear inspection of the engine AGB cover prior to the effective date of this AD in accordance with the instructions given in Turbomeca MSB No. 292 72 2861, Version C, dated March 9, 2016, or Turbomeca MSB No. 292 72 2861, Version B, dated February 2, 2016, then you may take credit for that wear inspection as the “most recent” wear inspection for the purposes of paragraph (e)(4) of this AD.

    (g) Definition

    For the purpose of this AD, an engine shop visit is defined as the induction of an engine into the shop for maintenance involving the separation of any major mating engine flanges, except that the separation of engine flanges solely for the purposes of transportation without subsequent engine maintenance does not constitute an engine shop visit.

    (h) Alternative Methods of Compliance (AMOCs)

    The Manager, Engine Certification Office, FAA, may approve AMOCs for this AD. Use the procedures found in 14 CFR 39.19 to make your request. You may email your request to: [email protected]

    (i) Related Information

    (1) For more information about this AD, contact Philip Haberlen, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7770; fax: 781-238-7199; email: [email protected]

    (2) Refer to MCAI European Aviation Safety Agency AD 2016-0055R1, dated October 11, 2016, for more information. You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov/document?D=FAA-2015-3753-0006.

    (j) Material Incorporated by Reference

    (1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.

    (2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.

    (i) Safran Helicopter Engines, S.A. Mandatory Service Bulletin No. 292 72 2861, Version D, dated September 23, 2016.

    (ii) Reserved.

    (3) For Safran Helicopter Engines, S.A. service information identified in this AD, contact Safran Helicopter Engines, S.A. 40220 Tarnos, France; phone: 33 0 5 59 74 40 00; fax: 33 0 5 59 74 45 15.

    (4) You may view this service information at FAA, Engine & Propeller Directorate, 1200 District Avenue, Burlington, MA. For information on the availability of this material at the FAA, call 781-238-7125.

    (5) You may view this service information at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal-register/cfr/ibr-locations.html.

    Issued in Burlington, Massachusetts, on November 29, 2016. Colleen M. D'Alessandro, Manager, Engine & Propeller Directorate, Aircraft Certification Service.
    [FR Doc. 2016-31695 Filed 12-29-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Parts 11 and 101 [Docket No. FDA-2011-F-0172] RIN 0910-AG57 Food Labeling; Nutrition Labeling of Standard Menu Items in Restaurants and Similar Retail Food Establishments; Extension of Compliance Date AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Final rule; extension of compliance date.

    SUMMARY:

    The Food and Drug Administration (FDA or we) is extending the compliance date for the final rule requiring disclosure of certain nutrition information for standard menu items in certain restaurants and retail food establishments. The final rule appeared in the Federal Register of December 1, 2014, and on May 5, 2016, we stated in the Federal Register that the enforcement of the final rule would begin on May 5, 2017. We are taking this action to clarify and confirm that the compliance date for the final rule is May 5, 2017.

    DATES:

    Effective date: This final rule is effective December 30, 2016. Compliance date: Covered establishments must comply with the rule published December 1, 2014 (79 FR 71156) by May 5, 2017.

    FOR FURTHER INFORMATION CONTACT:

    Ashley Rulffes, Center for Food Safety and Applied Nutrition (HFS-820), Food and Drug Administration, 5001 Campus Dr., College Park, MD 20740, 240-402-2371, email: [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Background

    In the Federal Register of December 1, 2014 (79 FR 71156), we published a final rule requiring disclosure of certain nutrition information for standard menu items in certain restaurants and retail food establishments. The final rule, which is now codified at § 101.11 (21 CFR 101.11), implements provisions of section 403(q)(5)(H) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 343(q)(5)(H)) and:

    • Defines terms, including terms that describe criteria for determining whether an establishment is subject to the rule;

    • establishes which foods are subject to the nutrition labeling requirements and which foods are not subject to these requirements;

    • requires that calories for standard menu items be declared on menus and menu boards that list such foods for sale;

    • requires that calories for standard menu items that are self-service or on display be declared on signs adjacent to such foods;

    • requires that written nutrition information for standard menu items be available to consumers who ask to see it;

    • requires, on menus and menu boards, a succinct statement concerning suggested daily caloric intake (succinct statement), designed to help the public understand the significance of the calorie declarations;

    • requires, on menus and menu boards, a statement regarding the availability of the written nutrition information (statement of availability);

    • establishes requirements for determination of nutrient content of standard menu items;

    • establishes requirements for substantiation of nutrient content determined for standard menu items, including requirements for records that a covered establishment must make available to FDA within a reasonable period of time upon request; and

    • establishes terms and conditions under which restaurants and similar retail food establishments not otherwise subject to the rule could elect to be subject to the requirements by registering with FDA.

    In the preamble to the final rule (79 FR 71156 at 71239 through 71241), we stated that the rule would be effective on December 1, 2015, and also provided a compliance date of December 1, 2015, for covered establishments. The final rule (at § 101.11(a)) defines “covered establishment” as a restaurant or similar retail food establishment that is a part of a chain with 20 or more locations doing business under the same name (regardless of the type of ownership, e.g., individual franchises) and offering for sale substantially the same menu items, as well as a restaurant or similar retail food establishment that is voluntarily registered to be covered under § 101.11(d).

    II. Extending the Compliance Date

    In the Federal Register of July 10, 2015 (80 FR 39675), in response to requests from affected entities, we announced our decision to extend the compliance date for the final rule to December 1, 2016. The final rule requirements are intended to ensure that consumers are provided accurate, clear, and consistent nutrition information for foods sold in covered establishments in a direct and accessible manner to enable consumers to make informed and healthful dietary choices. We stated in that extension that allowing adequate time for covered establishments to fully implement the final rule's requirements, as described in the requests, would help accomplish the primary objective of the final rule and is in the public interest.

    On December 18, 2015, the President signed the Consolidated Appropriations Act, 2016 (Pub. L. 114-113). Section 747 of the Consolidated Appropriations Act states that none of the funds made available under the Consolidated Appropriations Act may be used to implement, administer, or enforce the final rule entitled “Food Labeling; Nutrition Labeling of Standard Menu Items in Restaurants and Similar Retail Food Establishments” until 1 year after the date we publish a Level 1 guidance with respect to nutrition labeling of standard menu items in restaurants and similar retail food establishments.

    In the Federal Register of May 5, 2016 (81 FR 27067), we announced the availability of the Level 1 guidance document and stated that enforcement of the final rule published December 1, 2014, would commence on May 5, 2017 (81 FR 27067 at 27068). While FDA made clear that we would not begin enforcing menu labeling requirements prior to May 5, 2017, we did not at that time formally make a change to the compliance date through rulemaking.

    Therefore, through this final rule, we are clarifying and confirming that the compliance date for the final rule entitled “Food Labeling; Nutrition Labeling of Standard Menu Items in Restaurants and Similar Retail Food Establishments,” codified at § 101.11, is May 5, 2017.

    III. Economic Analysis of Impacts

    We have examined the impacts of the final rule under Executive Order 12866, Executive Order 13563, the Regulatory Flexibility Act (5 U.S.C. 601-612), and the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). Executive Orders 12866 and 13563 direct us to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). We have developed a comprehensive Economic Analysis of Impacts that assesses the impacts of the final rule. We believe that this final rule is not a significant regulatory action as defined by Executive Order 12866.

    The Regulatory Flexibility Act requires Agencies to analyze regulatory options that would minimize any significant impact of a rule on small entities. Because this rule provides more flexibility by further extending the compliance date for the “Food Labeling: Nutrition Labeling of Standard Menu Items in Restaurants and Similar Retail Food Establishments” final rule (79 FR 71156) (menu labeling final rule), we certify that the final rule will not have a significant economic impact on a substantial number of small entities.

    The Unfunded Mandates Reform Act of 1995 (section 202(a)) requires us to prepare a written statement, which includes an assessment of anticipated costs and benefits, before issuing “any rule that includes any Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any one year.” The current threshold after adjustment for inflation is $146 million, using the most current (2015) Implicit Price Deflator for the Gross Domestic Product. This final rule would not result in an expenditure in any year that meets or exceeds this amount.

    This rule extends the compliance date of the menu labeling final rule by approximately 5 months: From December 1, 2016, to May 5, 2017. The estimated costs and benefits accrued in any given year that the menu labeling rule is in effect, relative to the first year of compliance, does not change; however, because the compliance date is being extended by 5 months, the discounted value of both total costs and total benefits decreases. The principal benefit of this final rule will be the reduction in costs associated with extending the compliance date by 5 months. The principal cost of this final rule will be the reduction in benefits associated with extending the compliance date by 5 months. Extending the compliance date of the menu labeling final rule by 5 months reduces the annualized net benefits (discounted at 3 percent) approximately 3 percent, from $457 million to $442 million. While average annualized net benefits decrease by $15 million, they are still positive. We note that this extension of the compliance date will not have an actual effect on the cost or benefits of the menu labeling rule, because, under section 747 of the Consolidated Appropriations Act, 2016, FDA was not authorized to spend funds to “implement, administer, or enforce” the rule until May 5, 2017, a year after the date on which published a Level 1 guidance with respect to nutrition labeling of standard menu items in restaurants and similar retail food establishments. We are presenting the benefits and costs of the menu labeling final rule, which takes effect according to the dates in this rule.

    The full analysis of economic impacts is available in the docket for this final rule (Ref. 1) and at http://www.fda.gov/AboutFDA/ReportsManualsForms/Reports/EconomicAnalyses/default.htm.

    IV. Paperwork Reduction Act

    This final rule contains no collection of information. Therefore, clearance by the Office of Management and Budget under the Paperwork Reduction Act of 1995 is not required.

    V. Analysis of Environmental Impact

    We have determined under 21 CFR 25.30(k) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

    VI. Reference

    The following reference is on display in the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852, and is available for viewing by interested persons between 9 a.m. and 4 p.m., Monday through Friday; it is also available electronically at https://www.regulations.gov. FDA has verified the Web site addresses, as of the date this document publishes in the Federal Register, but Web sites are subject to change over time.

    1. FDA, “Food Labeling; Nutrition Labeling of Standard Menu Items in Restaurants and Similar Retail Food Establishments; Extension of Compliance Date,” 2015. Available at: http://www.fda.gov/AboutFDA/ReportsManualsForms/Reports/EconomicAnalyses/. Dated: December 23, 2016. Leslie Kux, Associate Commissioner for Policy.
    [FR Doc. 2016-31597 Filed 12-29-16; 8:45 am] BILLING CODE 4164-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 888 [Docket No. FDA-2014-N-1205] Orthopedic Devices; Reclassification of Pedicle Screw Systems, Henceforth To Be Known as Thoracolumbosacral Pedicle Screw Systems, Including Semi-Rigid Systems AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Final order.

    SUMMARY:

    The Food and Drug Administration (FDA) is issuing a final order to reclassify pedicle screw systems, a preamendments class III device (regulated under product code NKB), into class II (special controls), renaming the device “thoracolumbosacral pedicle screw systems”; reclassify dynamic stabilization systems, a subtype of pedicle screw systems regulated under product code NQP when used as an adjunct to fusion, into class II (special controls), renaming this device subtype “semi-rigid systems”; and clarify the device identification of pedicle screw systems to more clearly delineate between rigid pedicle screw systems and semi-rigid systems. FDA is finalizing this action based on a reevaluation of information pertaining to the device type.

    DATES:

    This order is effective on December 30, 2016. See further discussion in section V, “Implementation Strategy.”

    FOR FURTHER INFORMATION CONTACT:

    Constance P. Soves, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 1437, Silver Spring, MD 20993, 301-796-6951, [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Background—Regulatory Authorities

    The Federal Food, Drug, and Cosmetic Act (the FD&C Act), as amended by the Medical Device Amendments of 1976 (the 1976 amendments) (Pub. L. 94-295), the Safe Medical Devices Act of 1990 (Pub. L. 101-629), the Food and Drug Administration Modernization Act of 1997 (Pub. L. 105-115), the Medical Device User Fee and Modernization Act of 2002 (Pub. L. 107-250), the Medical Devices Technical Corrections Act (Pub. L. 108-214), the Food and Drug Administration Amendments Act of 2007 (Pub. L. 110-85), and the Food and Drug Administration Safety and Innovation Act (FDASIA) (Pub. L. 112-144), among other amendments, established a comprehensive system for the regulation of medical devices intended for human use. Section 513 of the FD&C Act (21 U.S.C. 360c) established three categories (classes) of devices, reflecting the regulatory controls needed to provide reasonable assurance of their safety and effectiveness. The three categories of devices are class I (general controls), class II (special controls), and class III (premarket approval).

    Under section 513(d) of the FD&C Act, devices that were in commercial distribution before the enactment of the 1976 amendments, May 28, 1976 (generally referred to as preamendments devices), are classified after FDA has: (1) Received a recommendation from a device classification panel (an FDA advisory committee); (2) published the panel's recommendation for comment, along with a proposed regulation classifying the device; and (3) published a final regulation classifying the device. FDA has classified most preamendments devices under these procedures.

    Devices that were not in commercial distribution prior to May 28, 1976 (generally referred to as “postamendments devices”) are automatically classified by section 513(f) of the FD&C Act into class III without any FDA rulemaking process. Those devices remain in class III and require premarket approval unless, and until, the device is reclassified into class I or II or FDA issues an order finding the device to be substantially equivalent, in accordance with section 513(i) of the FD&C Act, to a predicate device that does not require premarket approval. The Agency determines whether new devices are substantially equivalent to predicate devices by means of premarket notification procedures in section 510(k) of the FD&C Act (21 U.S.C. 360(k)) and part 807 (21 Code of Federal Regulations (CFR) part 807).

    A preamendments device that has been classified into class III and devices found substantially equivalent by means of premarket notification (510(k)) procedures to such a preamendments device or to a device within that type (both the preamendments and substantially equivalent devices are referred to as preamendments class III devices) may be marketed without submission of a premarket approval application (PMA) until FDA issues a final order under section 515(b) of the FD&C Act (21 U.S.C. 360e(b)) requiring premarket approval.

    Under section 515(i)(2) of the FD&C Act, FDA has the authority to issue an administrative order revising the proposed classification of a device for which FDA has classified as a class III device and for which no administrative order has been issued calling for PMAs under section 515(b) of the FD&C Act, so that the device is classified into class I or class II, after issuance of a proposed order, a meeting of a device classification panel, and consideration of the comments of a proposed order. In determining whether to revise the proposed classification of a device or to require a device to remain in class III, FDA applies the criteria set forth in section 513(a) of the FD&C Act. Section 513(a)(1)(B) of the FD&C Act defines class II devices as those devices for which the general controls in section 513(a)(1)(A) by themselves are insufficient to provide reasonable assurance of safety and effectiveness, but for which there is sufficient information to establish special controls to provide a reasonable assurance of safety and effectiveness of a device.

    On July 9, 2012, FDASIA was enacted. Section 608(a) of FDASIA amended section 513(e) of the FD&C Act, changing the mechanism for reclassifying a device from rulemaking to an administrative order.

    Section 513(e) of the FD&C Act provides that FDA may, by administrative order, reclassify a device based upon “new information.” FDA can initiate a reclassification under section 513(e) or an interested person may petition FDA to reclassify a preamendments device. The term “new information,” as used in section 513(e), includes information developed as a result of a reevaluation of the data before the Agency when the device was originally classified, as well as information not presented, not available, or not developed at that time. (See, e.g., Holland-Rantos Co. v. United States Department of Health, Education, and Welfare, 587 F.2d 1173, 1174 n.1 (D.C. Cir. 1978); Upjohn v. Finch, 422 F.2d 944 (6th Cir. 1970); Bell v. Goddard, 366 F.2d 177 (7th Cir. 1966).)

    Reevaluation of the data previously before the Agency is an appropriate basis for subsequent action where the reevaluation is made in light of newly available authority (see Bell, 366 F.2d at 181; Ethicon, Inc. v. FDA, 762 F.Supp. 382, 388-391 (D.D.C. 1991)), or in light of changes in “medical science” (Upjohn, 422 F.2d at 951). Whether data before the Agency are old or new data, the “new information” to support reclassification under section 513(e) must be “valid scientific evidence,” as defined in section 513(a)(3) of the FD&C Act and 21 CFR 860.7(c)(2). (See, e.g., General Medical Co. v. FDA, 770 F.2d 214 (D.C. Cir. 1985); Contact Lens Mfrs. Ass'n v. FDA, 766 F.2d 592 (D.C. Cir. 1985), cert. denied, 474 U.S. 1062 (1986).)

    FDA relies upon “valid scientific evidence” in the classification process to determine the level of regulation for devices. To be considered in the reclassification process, the “valid scientific evidence” upon which the Agency relies must be publicly available. Publicly available information excludes trade secret and/or confidential commercial information, e.g., the contents of a pending PMA. (See section 520(c) of the FD&C Act (21 U.S.C. 360j(c)).)

    Section 513(e)(1) of the FD&C Act sets forth the process for issuing a final reclassification order. Specifically, prior to the issuance of a final order reclassifying a device, the following must occur: (1) Publication of a proposed order in the Federal Register; (2) a meeting of a device classification panel described in section 513(b) of the FD&C Act; and (3) consideration of comments to a public docket.

    FDA published a proposed order to propose different classifications for rigid pedicle screw systems and semi-rigid systems (SRSs) in the Federal Register of November 12, 2014 (79 FR 67105) (2014 Proposed Order). Moreover, as explained in section II of the 2014 Proposed Order, on May 22, 2013, FDA held a classification meeting of the Orthopedic and Rehabilitation Devices Panel (the 2013 Panel) to discuss pedicle screw systems, which include rigid pedicle screw systems and SRSs. FDA received and has considered all the comments on the 2014 Proposed Order, as discussed in section III. Therefore, FDA has met the requirements under sections 513(e)(1) and 515(i)(2) of the FD&C Act.

    II. Device Description

    Pedicle screw systems consist of multiple component devices made from a variety of materials that allow the surgeon to build an implant system to fit the patient's anatomical and physiological requirements. Such a spinal implant assembly may consist of a combination of hooks, screws, longitudinal members (e.g., plates, rods, plate/rod combinations), transverse or cross connectors, and interconnection mechanisms (e.g., rod-to-rod connectors, offset connectors). Rigid pedicle screw systems provide immediate rigid fixation to the spinal column as an adjunct to spinal fusion procedures.

    Since the 1998 classification (63 FR 40025, July 27, 1998), changes in technological characteristics have occurred, leading to the emergence of a new type of pedicle screw system, SRSs, previously referred to as dynamic stabilization systems (DSSs). SRSs are a subset of the pedicle screw systems regulated under § 888.3070 (21 CFR 888.3070). SRSs are defined as systems that contain one or more non-uniform and/or non-metallic longitudinal elements (e.g., polymer cords, moveable screw heads, springs) that allow more motion or flexibility (e.g., bending, rotation, translation) compared to rigid systems and do not provide immediate rigid fixation to the spinal column as an adjunct to spinal fusion procedures.

    In the 2014 Proposed Order, FDA proposed to modify the identification language from the way it is presently written in § 888.3070(a) and sought comments on the means of providing distinction between rigid pedicle screw systems and pedicle screw systems that allow more motion or flexibility. As discussed in section III, FDA received several comments suggesting that § 888.3070 separate SRSs, which may allow for more flexibility than traditional rigid pedicle screw systems but still facilitate fusion, from truly “dynamic” systems that are intended for non-fusion use. Truly dynamic systems intended for non-fusion use are postamendments devices that are outside the scope of this regulatory action. FDA agrees with these comments and has modified the identification language from the way it is presently written in § 888.3070(a) to include SRSs.

    FDA has also, on its own initiative, renamed “pedicle screw spinal system” as “thoracolumbosacral pedicle screw system” to clearly distinguish these devices from posterior cervical screw systems, which are not intended to be covered by § 888.3070.

    III. Public Comments in Response to the Proposed Order

    In response to the 2014 Proposed Order, FDA received 15 comments from industry, trade organizations, professional societies, and individuals. Certain comments are grouped together under a single number because the subject matter of the comments is similar. The number assigned to each comment is purely for organizational purposes and does not signify the comment's value or importance or the order in which it was submitted. The comments that follow are grouped into those that pertain to rigid pedicle screw systems and those that pertain to SRSs.

    A. Rigid Pedicle Screw Systems

    Of the 15 comments received, several specifically referenced the proposal to reclassify rigid pedicle screw systems when intended to provide immobilization and stabilization of spinal segments in the thoracic, lumbar, and sacral spine as an adjunct to fusion in the treatment of degenerative disc disease (DDD) and spondylolisthesis (other than either severe spondylolisthesis (grades 3 and 4) at L5-S1 or degenerative spondylolisthesis with objective evidence of neurologic impairment). Some commenters agreed with the recommendation to reclassify these as class II devices (special controls), most of whom specifically stated that they agreed with the Agency that general and special controls can provide reasonable assurance of the safety and effectiveness of rigid pedicle screw systems.

    (Comment 1) Some commenters did not agree with the proposal to reclassify rigid pedicle screw systems to class II (special controls). One comment stated that labeling special controls are not appropriate risk mitigations and that clinical data should be required for these devices. Another comment noted that adverse events have been identified for rigid pedicle screw systems, and the final comment noted varied results in clinical literature, specifically citing a 1990 study by Matsuzaki et al. that found a 5.7 percent screw breakage rate (Ref. 1).

    (Response 1) FDA disagrees that rigid pedicle screw systems for treatment of DDD and spondylolisthesis (other than either severe spondylolisthesis (grades 3 and 4) at L5-S1 or degenerative spondylolisthesis with objective evidence of neurologic impairment) should remain in class III. The Agency believes the labeling special controls proposed to inform users of the technological features of the device (including identification of device materials and the principles of device operation), intended use and indications for use (including levels of fixation), identification of magnetic resonance compatibility status, cleaning and sterilization instructions, and detailed instructions of each surgical step (including device removal) are appropriate to help mitigate the identified risks to health that may result from improper use of rigid pedicle screw systems. The Agency does not believe clinical data are necessary for rigid pedicle screw systems indicated for treatment of DDD and spondylolisthesis (other than either severe spondylolisthesis (grades 3 and 4) at L5-S1 or degenerative spondylolisthesis with objective evidence of neurologic impairment). Clinical data from use of rigid pedicle screw systems for these indications were presented to the 2013 Panel to support reclassification to class II. Furthermore, non-clinical methods used to evaluate these devices have been demonstrated to adequately mitigate risks to health. FDA still retains the ability to request appropriate performance testing, including clinical data for individual devices with a different indication for use and/or different technological features that do not raise different questions of safety and effectiveness as compared to a predicate device, to demonstrate that the individual devices are as safe and effective as the predicate device, if necessary. FDA acknowledges that rigid pedicle screw systems, like all medical devices, have risks to health, as evidenced by the adverse events noted by one commenter, and the breakage rate identified in the 1990 Matsuzaki et al. study cited by another commenter (Ref. 1). On May 22, 2013, FDA held the 2013 Panel meeting to discuss the current classification of rigid pedicle screw systems for treatment of degenerative disc disease and spondylolisthesis other than either severe spondylolisthesis (grades 3 and 4) at L5-S1 or degenerative spondylolisthesis with objective evidence of neurologic impairment, which are currently class III indications (Ref. 2). FDA is not aware of evidence that indicates there is a higher rate of screw fracture for the class III indications, which is the focus of this reclassification effort, compared to the class II indications. The 2013 Panel discussed the adverse events and clinical literature associated with rigid pedicle screw systems for all indications, and recommended that traditional, rigid pedicle screw systems as an adjunct to fusion for the treatment of DDD and spondylolisthesis other than severe grades 3 or 4, or degenerative spondylolisthesis with objective evidence of neurologic impairment be reclassified as class II (special controls).

    FDA agrees with the 2013 Panel's recommendation for reclassification. The Agency believes, as stated in the 2014 Proposed Order, that the risks of rigid pedicle screw systems as an adjunct to fusion for the treatment of DDD and spondylolisthesis other than severe grades 3 or 4, or degenerative spondylolisthesis with objective evidence of neurologic impairment, are sufficiently understood based on valid scientific evidence, which enables FDA to establish special controls to provide reasonable assurance of safety and effectiveness of rigid pedicle screw systems.

    (Comment 2) One commenter provided an additional recommendation for the identification language for rigid pedicle screw systems. Specifically, to more completely characterize components that may be used as a part of these systems, the commenter suggested adding sublaminar wires and cables to the list of components of these systems.

    (Response 2) FDA disagrees with this proposed edit to the identification language. These additional components, while often used in conjunction with pedicle screw systems, are classified under a separate classification regulation and, therefore, are not appropriate to include under § 888.3070. However, in review of this information, FDA acknowledges that hooks (currently listed in the identification language for pedicle screw systems) are also classified under a separate classification regulation. Therefore, the Agency has also taken the opportunity to remove “hooks” from the revised identification language for rigid pedicle screw systems.

    (Comment 3) One commenter recommended removing design characteristics as a special control because this should be a requirement of all premarket notifications. This commenter also recommended removing the word “rigid” from the identification.

    (Response 3) FDA disagrees with the recommendation of this commenter to remove design characteristics as a special control. FDA considers this special control critical to help differentiate technological features for rigid pedicle screw systems from SRSs. Similarly, inclusion of the word “rigid” in the identification language is necessary to distinguish between these and SRSs.

    (Comment 4) One commenter recommended revising the biocompatibility special control to state “compliance with biocompatibility standards.”

    (Response 4) FDA disagrees with this comment and has determined that it is most appropriate not to reference consensus standards within special controls because relevant standards are subject to change over time. The special controls as worded allow for additional mechanisms by which manufacturers can meet the requirements to ensure conformity.

    (Comment 5) One commenter recommended removing “wear” from the list of potential means by which a device could fail.

    (Response 5) The risk of wear was raised at the 2013 Panel, specifically in the context of SRSs. FDA still considers there to be a potential for wear in traditional rigid systems as well and, therefore, has elected not to modify the definition of device failure accordingly.

    (Comment 6) One commenter suggested editorial revisions to the risks and descriptive text associated with risks as outlined in the 2014 Proposed Order.

    (Response 6) These edits were not considered to substantively change the intended meaning of the risks and associated mitigations and, therefore, FDA will not accept these suggested edits in this final order.

    (Comment 7) One commenter provided several proposed edits that would impact § 888.3070(b)(1). Additionally, this commenter provided other editorial recommendations to the language from the 2014 Proposed Order.

    (Response 7) While FDA agrees with the proposed modifications that would impact § 888.3070(b)(1), these will require a separate regulatory action because this section of the regulation is outside the scope of the call for information under section 515(i) of the FD&C Act. Edits that were proposed to the language from the 2014 Proposed Order did not materially impact the language within this final order.

    In reviewing the 2014 Proposed Order, the comments received, and the 2013 Panel's recommendations, FDA is also making minor modifications to the identification for thoracolumbosacral pedicle screw systems. The identification for rigid pedicle screw systems will be revised from “longitudinal members (e.g., plates, rods, plate/rod combinations)” to “longitudinal members (e.g., plates, rods including dual diameter rods, plate/rod combinations)” as the latter statement clarifies that dual diameter rods would be considered to be part of rigid systems rather than as “non-uniform longitudinal elements” specified under the definition of SRSs.

    B. SRSs 1. Identification

    In the 2014 Proposed Order, FDA solicited comments to revise the identification language for pedicle screw spinal systems to distinguish between rigid pedicle screw systems and DSSs (now termed SRSs).

    (Comment 8) While most commenters did not specifically comment on the proposed up-classification of SRSs to class III, approximately half of the comments suggested revisions to the definition of SRSs. These suggestions propose separating SRSs, which may allow for more flexibility than traditional rigid pedicle screw systems but still facilitate fusion, from truly “dynamic” systems that are intended for non-fusion use. Truly dynamic systems are postamendments devices that are outside the scope of this regulatory action.

    (Response 8) FDA agrees with these comments and will henceforth refer to these systems as SRSs in this final order under § 880.3070(b)(3).

    (Comment 9) Several commenters provided alternative identification language to FDA's initially proposed definition of DSSs, now termed SRSs, which was as follows: “Dynamic stabilization systems are defined as systems that contain one or more non-uniform and/or non-metallic longitudinal elements (e.g., polymer cords, moveable screw heads, springs) that allow more motion or flexibility (e.g., bending, rotation, translation) compared to rigid pedicle screw systems and do not provide immediate rigid fixation to the spinal column as an adjunct [to] fusion.” While most commenters agreed with the language that these systems “allow more motion or flexibility,” there were several comments that disagreed with the technological features called out within this definition (i.e., non-uniform and/or non-metallic). For example, one commenter provided the case that an undersized metallic rod may allow for more flexibility than a larger non-metallic rod. Similar arguments were also made at the 2013 Panel, where the challenges of defining these systems based upon technological characteristics were also discussed. Accordingly, several commenters proposed modifications to the identification language of these systems based solely on intended use (i.e., not intended for immediate rigid fixation, or intended to allow more motion or flexibility compared to rigid systems). Two commenters did not specifically provide alternate language; however, these commenters provided data from clinical and non-clinical studies to support the argument that rods manufactured from polyetheretherketone (PEEK) perform similarly to traditional metallic rods (Refs. 3 to 5). Qi et al. demonstrated that subjects undergoing single posterolateral fusion with either titanium rods or PEEK rods showed no difference in adjacent segment disease, spinal alignment, or clinical outcomes (Ref. 3). A biomechanical study by Sengupta et al. shows similar restriction in range of motion for PEEK rods compared to both the traditional metallic rods and another SRS device (Ref. 4). Kurtz et al. collected and analyzed explanted PEEK and traditional metallic rods and concluded that the PEEK rod retrievals showed similar wear patterns compared to traditional rigid rods (Ref. 5). These commenters also used terminology to distinguish these types of systems (i.e., “semi-rigid systems”), which are used as an adjunct to fusion, from “non-rigid” or “flexible” systems, which are “intended for dynamic stabilization” of the spine. An additional commenter also cited a cadaver study, which similarly showed that PEEK rods resulted in comparable stability to traditional metallic systems (Ref. 6).

    (Response 9) In response to these comments, FDA has revised this identification to remove reference to “non-metallic” components and has also captured devices with less stiff materials (i.e., “features that allow more motion or flexibility compared to rigid systems”). FDA has also elected to alter the terminology used to identify these systems that “allow more motion or flexibility” when used as an adjunct to fusion as SRSs. This is also consistent with comments made at the 2013 Panel, in which the distinction between “semi-rigid” and “dynamic” systems was discussed. The features that may result in a device being classified as an SRS may include, but are not limited to, polymer cords, moveable screw heads, or springs. “Dynamic stabilization systems” for use in non-fusion procedures remain a postamendments class III device requiring PMAs.

    2. Classification

    In the 2014 Proposed Order, which was issued pursuant to sections 513(e)(1) and 515(i)(2) of the FD&C Act, FDA initially recommended that SRSs be classified into class III and require PMAs. Some commenters agreed with FDA's class III recommendation and other commenters proposed that SRSs be classified into class II.

    (Comment 10) One comment agreed that SRSs for non-fusion uses should remain in class III, but SRSs used as an adjunct to fusion should be classified as class II. The commenter described that “[w]e believe that this matter arose after two [SRS] products from two different manufacturers were recalled in 2008 and 2009. These two recalled devices created FDA concern over the entire category of [SRS], calling into question whether preclinical testing alone is sufficient to predict clinical outcomes for these devices. Other SRSs have not been recalled, nor are there significant safety concerns with these other [SRSs].” Another commenter conducted a Medical Device Reporting (MDR) analysis, which separated out PEEK rods from other SRSs to demonstrate a similarity in reporting of adverse events associated with PEEK rods to that of traditional metallic rods.

    Commenters specifically recommend that PEEK, or carbon-fiber reinforced PEEK, should remain in class II. This is based on several reported studies that demonstrate similarities in safety profiles and effectiveness outcomes for these devices as compared to devices incorporating traditional metallic rods, as also described previously in Comment 9 (Refs. 3 to 5). Two non-clinical literature articles provided in response to the proposed order demonstrate similar behavior between systems with PEEK rods and those with titanium rods.

    Commenters also provided references to clinical studies using SRSs (Refs. 7 to 9). Each of these studies demonstrates fusion rates within a range deemed to be clinically acceptable in single- or multilevel posterolateral fusion using PEEK rod constructs.

    (Response 10) Based on these comments to the proposed order and to corroborate findings from the literature following the 2013 Panel meeting, FDA conducted an additional MDR analysis of SRSs excluding the two recalled systems, as well as an MDR analysis of PEEK rods alone.

    A search of the Manufacturer and User Facility Device Experience database was conducted to identify the relevant MDRs and identify the types of adverse events reported for pedicle screw spinal systems on or before October 17, 2016. Results from this MDR analysis demonstrated that the same types of adverse events are present in the same relative incidence for SRS devices as noted in traditional rigid pedicle screw systems (i.e., the most common adverse events are device breakage, revision, and pain in all groups). FDA believes this evidence demonstrates that SRS devices have the same risks to health as rigid pedicle screw systems.

    FDA additionally conducted an independent survey of literature published after the 2013 Panel related to the use of SRSs as an adjunct to fusion to assess current surgical practice and reported treatment outcome. FDA's literature search captured the articles identified previously in the comments as well as articles pertaining to additional SRS designs that have been cleared for marketing in the United States (Refs. 10 and 11). While only a subset of the 16 SRSs that have currently been determined to be substantially equivalent are represented in the literature, a wide range of currently cleared SRS designs is represented by this subset. The data demonstrated similar safety profiles for SRSs compared to traditional rigid pedicle screw systems. The adverse events reported in the literature for SRSs are similar to those cited in the Executive Summary for the 2013 Panel Meeting for traditional rigid pedicle screw systems used in currently class III indications that we proposed to reclassify to Class II rods (Ref. 2). Typical adverse events included pseudarthrosis, reoperation, screw loosening, and screw breakage. There were no reports of breakage of the longitudinal members of any of the SRSs studied.

    The fusion rates of SRSs compare favorably to fusion rates of traditional systems for treatment of low-grade spondylolisthesis and DDD, which range from 78 to 100 percent and which the 2013 Panel deemed to be clinically acceptable to support reclassification for these indications (see the 2013 Panel Executive Summary for additional information (Ref. 2)). Based upon the currently available information, FDA agrees with the Panel's assessment that a fusion rate within the range of 78 to 100 percent would be clinically acceptable. Although the information presented to the 2013 Panel was limited in both the number of subjects and the number of SRSs represented, additional information that FDA received and considered after the 2013 Panel meeting supports FDA's determination that there is sufficient information to revise the proposed classification of SRSs from class III to II. FDA believes that the range of fusion rates found clinically acceptable by the 2013 Panel could serve as a performance parameter for providing reasonable assurance of safety and effectiveness for the device type based on the valid scientific evidence but due to some variability (e.g., design and material used) among individual devices, FDA has determined that clinical data are needed to demonstrate that each device with its specific characteristics (e.g., design and material used) and conditions of use meets that parameter. FDA believes that fusion rates higher than the current clinically acceptable range may be achieved with improvement in technology and, thus, may consider that factor in evaluating clinical data submitted from firms.

    Based upon the information provided in response to the proposed order, and including additional analyses of the literature and MDRs since the 2013 Panel, FDA has determined that the risks to health are not substantially different from traditional rigid pedicle screw spinal systems. As discussed previously and in the 2014 Proposed Order, FDA agreed with the 2013 Panel that there is valid scientific evidence on the safety of rigid pedicle screw systems. FDA has also determined, as discussed previously, that an evaluation of additional MDR data and additional clinical literature provide valid scientific evidence regarding the safety of SRS devices for fusion (Refs. 3 to 11).

    Whereas non-clinical performance testing appropriately mitigates the risks to health for rigid pedicle screw systems, non-clinical special controls are not sufficient to mitigate the risks to health, specifically, the risk of pseudarthrosis resulting in additional surgical procedures, for SRS devices. Non-clinical performance testing (such as standardized test methods or biomechanical testing of cadaveric specimens) does not adequately differentiate between different SRS technologies nor predict the ability to achieve spinal fusion with a particular SRS. While some SRSs can be tested using the typical bench testing as a means of comparing performance of traditional rigid pedicle screw systems (e.g., per ASTM F1717-15, “Standard Test Methods for Spinal Implant Constructs in a Vertebrectomy Model”), this testing may result in lower bending stiffness for SRSs than similarly sized uniform metallic rods (Ref. 12). Testing in accordance with ASTM F1717-15 is not typically used to evaluate SRS technologies as significant modifications to the test standards are often necessary to conduct the test. Given that the systems have not typically been tested in accordance with the accepted consensus standard and as standardized acceptance criteria for SRS technologies undergoing this testing have not been developed, it is challenging to solely use the results of non-clinical performance testing for comparison purposes to rigid pedicle screw systems.

    While clinical data as a special control was not specifically mentioned in the comments, the 2013 Panel discussed the ability for clinical data to distinguish between successful and unsuccessful SRS device designs. FDA believes that clinical performance data would adequately mitigate the risks to health for SRS devices, particularly the risk of pseudarthrosis resulting in additional surgical procedures. In addition, there is sufficient valid scientific evidence showing that the device type is effective for use as an adjunct to fusion, when the fusion rate is within a clinically acceptable range, as discussed previously. FDA therefore believes there is sufficient information to establish special controls that, in addition to general controls, can provide a reasonable assurance of safety and effectiveness for SRSs. Table 1 summarizes how FDA believes the risks to health identified for SRSs can be mitigated by special controls, including clinical performance data.

    Table 1—Risks to Health and Mitigation Measures for SRSs Identified risks to health Mitigation method Device failure Design characteristics; Non-clinical performance testing; Labeling. Failure of bone implant interface Design characteristics; Biocompatibility evaluation; Non-clinical performance testing; Labeling. Tissue injury Labeling. Adverse tissue reaction Design characteristics; Biocompatibility evaluation; Sterility; Labeling. Device malposition Labeling. Pseudarthrosis Non-clinical performance testing; Clinical performance testing; Labeling.

    As discussed in FDA's response to Comment 1, the risks to health and associated mitigation measures for rigid pedicle screw systems remain unchanged from those listed in table 1 of the 2014 Proposed Order.

    3. SRS as Class II Device

    As stated previously, FDA has reevaluated all of the valid scientific evidence for SRSs in finalizing this order. As described in the proposed order and in section I of this order, FDA has satisfied the requirements under section 515(i)(2) of the FD&C Act for revising the proposed classification for SRSs. Under section 515(i)(2) of the FD&C Act, FDA has the authority to issue an administrative order revising the proposed classification of a device for which FDA has classified as a class III device and for which no administrative order has been issued calling for PMAs under section 515(b) of the FD&C Act, so that the device is classified into class I or class II, after issuance of a proposed order, a meeting of a device classification panel, and consideration of the comments of a proposed order. In determining whether to revise the proposed classification of a device or to require a device to remain in class III, FDA applies the criteria set forth in section 513(a) of the FD&C Act. Section 513(a)(1)(B) of the FD&C Act defines class II devices as those devices for which the general controls in section 513(a)(1)(A) by themselves are insufficient to provide reasonable assurance of safety and effectiveness, but for which there is sufficient information to establish special controls to provide a reasonable assurance of safety and effectiveness of a device.

    FDA has reviewed all of the initial procedures, scientific information presented at the 2013 Panel meeting, comments received from both the 2014 Proposed Order and 2009 Final Order under section 515(i)(1) of the FD&C Act calling for information on preamendment devices (74 FR 16214, April 9, 2009) for consideration of the classification of SRS devices under section 513(a) of the FD&C Act and has initiated revision of the proposed classification of the device under section 515(i)(2) of the FD&C Act.

    The discussion at the 2013 Panel for SRSs was limited, as acknowledged by 2013 Panel members, by the small number of studies available at that time and reports in the MDRs regarding SRSs for fusion. Given limitations of the available data, in literature and MDR analysis, the 2013 Panel concluded that insufficient evidence was available to establish special controls. Although FDA recommended, and the 2013 Panel agreed, that a call for PMAs was the necessary measure to mitigate the risks to health for SRSs and ensure a reasonable assurance of safety and effectiveness, FDA has since reassessed the scientific evidence based upon comments received and additional information, reevaluating the scientific evidence presented at the 2013 Panel meeting to reconsider FDA's prior position regarding the necessary controls to provide reasonable assurance of safety and effectiveness for SRSs. Based on FDA's reevaluation of the available body of evidence, FDA has determined that sufficient information exists regarding the risks and benefits of SRSs for FDA to determine that general and special controls can provide reasonable assurance of the safety and effectiveness of the device type and, thus, revising the proposed classification for these devices from class III to II under section 515(i)(2) of the FD&C Act is appropriate.

    Also, at the 2013 Panel meeting, the panel did discuss the feasibility of clinical data as being able to potentially distinguish between successful and non-successful SRS designs, without specifically discussing what level of data would be necessary. After further review of the scientific literature and comments, FDA believes that clinical performance data as a special control would adequately mitigate the risks to health for SRS devices, particularly the risk of pseudarthrosis resulting in additional surgical procedures (see response to Comment 10 in section II.B.2).

    Upon reevaluation of the scientific evidence and additional information, FDA has determined that SRS devices do not have the degree of risk of illness or injury designed to be eliminated or reduced by requiring the device to have an approved PMA under section 515(b)(2) of the FD&C Act. In addition, the level of scientific evidence evaluated has allowed FDA to determine that SRSs can be classified as class II with the establishment of special controls because sufficient valid scientific evidence exists to determine that general controls, in combination with special controls, are sufficient to provide a reasonable assurance of safety and effectiveness. FDA has determined that revision of the proposed classification of SRSs under section 515(i)(2) of the FD&C Act will allow these devices to be classified in class II subject to a clinical performance data special control. As a result, instead of calling for PMAs for SRSs, FDA is finalizing this order to revise the proposed classification for SRS devices from class III to class II (special controls) following reassessment of all relevant scientific evidence and comments received from the 2014 Proposed Order. FDA believes the clinical performance data special control and other special controls, together with general controls, are sufficient to provide a reasonable assurance of safety and effectiveness for SRS devices.

    IV. The Final Order

    Under sections 513(e) and 515(i) of the FD&C Act, FDA is adopting its findings as published in the preamble to the proposed order with the modifications discussed in section II of this final order. FDA is issuing this final order to reclassify rigid pedicle screw systems and to revise classification of SRSs when intended to provide immobilization and stabilization of spinal segments in the thoracic, lumbar, and sacral spine as an adjunct to fusion in the treatment of DDD and spondylolisthesis (other than either severe spondylolisthesis (grades 3 and 4) at L5-S1 or degenerative spondylolisthesis with objective evidence of neurologic impairment) when used as an adjunct to fusion from class III to class II and establish special controls for all SRSs by revising part 888. Rigid pedicle screw systems when intended to provide immobilization and stabilization of spinal segments in the thoracic, lumbar, and sacral spine as an adjunct to fusion in the treatment of DDD and spondylolisthesis (other than either severe spondylolisthesis (grades 3 and 4) at L5-S1 or degenerative spondylolisthesis with objective evidence of neurologic impairment) and SRSs for any indication must comply with the special controls identified in this order (see Section V, “Implementation Strategy”).

    Section 510(m) of the FD&C Act provides that FDA may exempt a class II device from the premarket notification requirements under section 510(k) of the FD&C Act if FDA determines that premarket notification is not necessary to provide reasonable assurance of the safety and effectiveness of the devices. FDA has determined that premarket notification is necessary to provide reasonable assurance of safety and effectiveness of rigid pedicle screw systems and SRSs when intended to provide immobilization and stabilization of spinal segments in the thoracic, lumbar, and sacral spine as an adjunct to fusion in the treatment of DDD and spondylolisthesis (other than either severe spondylolisthesis (grades 3 and 4) at L5-S1 or degenerative spondylolisthesis with objective evidence of neurologic impairment). Therefore, these device types are not exempt from premarket notification requirements.

    Following the effective date of this final order, firms marketing rigid pedicle screw systems when intended to provide immobilization and stabilization of spinal segments in the thoracic, lumbar, and sacral spine as an adjunct to fusion in the treatment of DDD and spondylolisthesis (other than either severe spondylolisthesis (grades 3 and 4) at L5-S1 or degenerative spondylolisthesis with objective evidence of neurologic impairment) and SRSs for any indication must comply with the special controls set forth in this order (see section V, “Implementation Strategy”).

    V. Implementation Strategy

    The special controls identified in this final order are effective as of the date of publication of this order, December 30, 2016. Both rigid pedicle screw systems and SRSs covered by this order must comply with the special controls following the effective date of the order. Specifically, devices subject to the special controls in this order include rigid pedicle screw systems intended to provide immobilization and stabilization of spinal segments in the thoracic, lumbar, and sacral spine as an adjunct to fusion in the treatment of DDD and spondylolisthesis (other than either severe spondylolisthesis (grades 3 and 4) at L5-S1 or degenerative spondylolisthesis with objective evidence of neurologic impairment), and SRSs for any indication. However, FDA does not intend to enforce compliance with the special controls for currently legally marketed SRSs covered by this order until June 28, 2018. The 30-month enforcement discretion period was selected based on the following factors: (1) The 2014 Proposed Order initially called for PMAs containing clinical performance data to be submitted within a 30-month timeframe, and thus the request in this final order for 510(k) amendments, which include submission of clinical performance data as a special control, maintains the same expectation of sponsors; and (2) the effectiveness endpoint of fusion for SRSs is generally assessed at 1 to 2 years post-implantation, and thus if a new study were to be initiated to collect clinical performance data, FDA would expect the 30-month period to be appropriate for SRS and allow sponsors sufficient time to enroll patients, conduct the study, and analyze the data.

    For those manufacturers who wish to continue to offer for sale currently legally marketed SRSs covered by this order, FDA expects them to submit an amendment to their previously cleared 510(k)s for the devices by June 28, 2018 that demonstrates compliance with the special controls. This approach is consistent with prior final orders for reclassifications of preamendment devices in which special controls requiring submission of clinical performance data were issued. An amendment to a 510(k) will be added to the 510(k) file but will not serve as a basis for a new substantial equivalence review. A submitted 510(k) amendment in this context will be used solely to demonstrate to FDA that an SRS system is in compliance with the special controls. If a 510(k) amendment for the device is not submitted by June 28, 2018 or if FDA determines that the amendment does not demonstrate compliance with the special controls, then this compliance policy would not apply, and FDA would intend to enforce compliance with these requirements. In that case, the device is deemed adulterated under section 501(f)(1)(B) of the FD&C Act (21 U.S.C. 351(f)(1)(B)) as of the date of FDA's determination of noncompliance or June 28, 2018, whichever is sooner.

    For rigid pedicle screw systems intended to provide immobilization and stabilization of spinal segments in the thoracic, lumbar, and sacral spine as an adjunct to fusion in the treatment of DDD and spondylolisthesis (other than either severe spondylolisthesis (grades 3 and 4) at L5-S1 or degenerative spondylolisthesis with objective evidence of neurologic impairment) and SRSs for any indication that have not been legally marketed prior to December 30, 2016, or models that have been legally marketed but are required to submit a new 510(k) under 21 CFR 807.81(a)(3) because the device is about to be significantly changed or modified, manufacturers must obtain 510(k) clearance, among other relevant requirements, and demonstrate compliance with the special controls included in this final order, before marketing the new or changed device.

    VI. Analysis of Environmental Impact

    The Agency has determined under 21 CFR 25.34(b) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

    VII. Paperwork Reduction Act of 1995

    This final order refers to previously approved collections of information found in FDA regulations. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections of information in part 807, subpart E, have been approved under OMB control number 0910-0120 and the collections of information under 21 CFR part 801 have been approved under OMB control number 0910-0485.

    VIII. Codification of Orders

    Prior to the amendments by FDASIA, section 513(e) of the FD&C Act provided for FDA to issue regulations to reclassify devices. Although section 513(e) as amended requires FDA to issue final orders rather than regulations, FDASIA also provides for FDA to revoke previously promulgated regulations by order. FDA will continue to codify classifications and reclassifications in the CFR. Changes resulting from final orders will appear in the CFR as changes to codified classification determinations or as newly codified orders. Therefore, pursuant to section 513(e)(1)(A)(i) of the FD&C Act, as amended by FDASIA, in this final order, we are revoking the requirements in § 888.3070 related to the classification of rigid pedicle screw systems and SRSs when intended to provide immobilization and stabilization of spinal segments in the thoracic, lumbar, and sacral spine as an adjunct to fusion in the treatment of DDD and spondylolisthesis (other than either severe spondylolisthesis (grades 3 and 4) at L5-S1 or degenerative spondylolisthesis with objective evidence of neurologic impairment) as class III devices. We are codifying the reclassification of rigid pedicle screw systems and SRSs when intended to provide immobilization and stabilization of spinal segments in the thoracic, lumbar, and sacral spine as an adjunct to fusion in the treatment of DDD and spondylolisthesis (other than either severe spondylolisthesis (grades 3 and 4) at L5-S1 or degenerative spondylolisthesis with objective evidence of neurologic impairment) into class II (special controls). In addition, as set forth in the 2014 Proposed Order, FDA has separated SRSs, a subtype of pedicle screw systems, from rigid pedicle screw systems in the identification section of the classification regulation (§ 888.3070(a)) and has established a separate subpart of the classification regulation (§ 888.3070(b)(3)), which is applicable to all SRSs regardless of indication.

    IX. References

    The following references are on display in the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852, and are available for viewing by interested persons between 9 a.m. and 4 p.m., Monday through Friday; they are also available electronically at https://www.regulations.gov. FDA has verified the Web site addresses, as of the date this document publishes in the Federal Register, but Web sites are subject to change over time.

    1. Matsuzaki, H., Y. Tokuhashi, F. Matsumoto, et al., “Problems and Solutions of Pedicle Screw Fixation of Lumbar Spine,” Spine, 15(11):1159-1165, 1990. 2. FDA's Orthopedic and Rehabilitation Devices Panel transcript and other meeting materials are available on FDA's Web site at: http://www.fda.gov/AdvisoryCommittees/CommitteesMeetingMaterials/MedicalDevices/MedicalDevicesAdvisoryCommittee/CirculatorySystemDevicesPanel/ucm352525.htm. 3. Qi, L., M. Li, S. Zhang, et al., “Comparative Effectiveness of PEEK Rods Versus Titanium Alloy Rods in Lumbar Fusion: A Preliminary Report,” Acta Neurochirurgica, 155(7):1187-1193, 2013. 4. Sengupta, D.K., B. Bucklen, P.C. McAfee, et al., “The Comprehensive Biomechanics and Load-Sharing of Semirigid PEEK and Semirigid Posterior Dynamic Stabilization Systems,” Advances in Orthopedics, 2013. doi:10.1155/2013/745610 (Epub); available at https://www.hindawi.com/journals/aorth/2013/745610/. 5. Kurtz, S.M., T.H. Lanman, G. Higgs, et al., “Retrieval Analysis of PEEK Rods for Posterior Fusion and Motion Preservation,” European Spine Journal, 22(12):2752-2759, 2013. 6. Gornet, M.F., F.W. Chan, J.C. Coleman, et al., “Biomechanical Assessment of a PEEK Rod System for Semi-Rigid Fixation of Lumbar Fusion Constructs,” Journal of Biomechanical Engineering, 133(8):081009, 2011. doi: 10.1115/1.4004862. 7. Athanasakopoulos, M., A.F. Mavrogenis, G. Triantafyllopoulos, et al., “Posterior Spinal Fusion Using Pedicle Screws,” Orthopedics, 36(7):e951-e957, 2013. doi: 10.3928/01477447-20130624-28. 8. Colangeli, S., G. Barbanti Brodàno, A. Gasbarrini, et al., “Polyetheretherketone (PEEK) Rods: Short-Term Results in Lumbar Spine Degenerative Disease,” Journal of Neurosurgical Sciences, 59(2):91-96, 2015. 9. De Iure, F., G. Bosco, M. Cappuccio, et al., “Posterior Lumbar Fusion by PEEK Rods in Degenerative Spine: Preliminary Report on 30 Cases,” European Spine Journal, 21 Suppl 1:S50-54, 2012. 10. Ormond, D.R., L. Albert Jr., and K. Das, “Polyetheretherketone (PEEK) Rods in Lumbar Spine Degenerative Disease: A Case Series,” Journal of Spine Disorders & Techniques, in press, 2012 (later published in 2016 under Clinical Spine Surgery, 29(7):E371-E375, 2016). 11. Yang, M., C. Li, Z. Chen, et al., “Short Term Outcome of Posterior Dynamic Stabilization System in Degenerative Lumbar Diseases,” Indian Journal of Orthopaedics, 48(6):574-581, 2014. 12. ASTM F1717-15, “Standard Test Methods for Spinal Implant Constructs in a Vertebrectomy Model,” July 2015; available at: https://www.astm.org/Standards/F1717.htm. List of Subjects in 21 CFR Part 888

    Medical devices.

    Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, 21 CFR part 888 is amended as follows:

    PART 888—ORTHOPEDIC DEVICES 1. The authority citation for part 888 continues to read as follows: Authority:

    21 U.S.C. 351, 360, 360c, 360e, 360j, 371.

    2. Section 888.3070 is amended by revising the section heading and paragraphs (a) and (b)(2), adding paragraph (b)(3), and removing paragraph (c).

    The revisions and addition read as follows:

    § 888.3070 Thoracolumbosacral pedicle screw system.

    (a) Identification. (1) Rigid pedicle screw systems are comprised of multiple components, made from a variety of materials that allow the surgeon to build an implant system to fit the patient's anatomical and physiological requirements. Such a spinal implant assembly consists of a combination of screws, longitudinal members (e.g., plates, rods including dual diameter rods, plate/rod combinations), transverse or cross connectors, and interconnection mechanisms (e.g., rod-to-rod connectors, offset connectors).

    (2) Semi-rigid systems are defined as systems that contain one or more of the following features (including but not limited to): Non-uniform longitudinal elements, or features that allow more motion or flexibility compared to rigid systems.

    (b) * * *

    (2) Class II (special controls), when a rigid pedicle screw system is intended to provide immobilization and stabilization of spinal segments in the thoracic, lumbar, and sacral spine as an adjunct to fusion in the treatment of degenerative disc disease and spondylolisthesis other than either severe spondylolisthesis (grades 3 and 4) at L5-S1 or degenerative spondylolisthesis with objective evidence of neurologic impairment. These pedicle screw systems must comply with the following special controls:

    (i) The design characteristics of the device, including engineering schematics, must ensure that the geometry and material composition are consistent with the intended use.

    (ii) Non-clinical performance testing must demonstrate the mechanical function and durability of the implant.

    (iii) Device components must be demonstrated to be biocompatible.

    (iv) Validation testing must demonstrate the cleanliness and sterility of, or the ability to clean and sterilize, the device components and device-specific instruments.

    (v) Labeling must include the following:

    (A) A clear description of the technological features of the device including identification of device materials and the principles of device operation;

    (B) Intended use and indications for use, including levels of fixation;

    (C) Identification of magnetic resonance (MR) compatibility status;

    (D) Cleaning and sterilization instructions for devices and instruments that are provided non-sterile to the end user; and

    (E) Detailed instructions of each surgical step, including device removal.

    (3) Class II (special controls), when a semi-rigid system is intended to provide immobilization and stabilization of spinal segments in the thoracic, lumbar, and sacral spine as an adjunct to fusion for any indication. In addition to complying with the special controls in paragraphs (b)(2)(i) through (v) of this section, these pedicle screw systems must comply with the following special controls:

    (i) Demonstration that clinical performance characteristics of the device support the intended use of the product, including assessment of fusion compared to a clinically acceptable fusion rate.

    (ii) Semi-rigid systems marketed prior to the effective date of this reclassification must submit an amendment to their previously cleared premarket notification (510(k)) demonstrating compliance with the special controls in paragraphs (b)(2)(i) through (v) and paragraph (b)(3)(i) of this section.

    Dated: December 22, 2016. Leslie Kux, Associate Commissioner for Policy.
    [FR Doc. 2016-31670 Filed 12-29-16; 8:45 am] BILLING CODE 4164-01-P
    DEPARTMENT OF TREASURY Internal Revenue Service 26 CFR Parts 1, 7, and 31 [TD 9807] RIN 1545-BL68 Information Returns; Winnings From Bingo, Keno, and Slot Machines AGENCY:

    Internal Revenue Service (IRS), Treasury.

    ACTION:

    Final regulations.

    SUMMARY:

    This document contains final regulations under section 6041 regarding the filing of information returns to report winnings from bingo, keno, and slot machine play. The rules update the existing requirements regarding the filing, form, and content of such information returns; allow for an additional form of payee identification; and provide an optional aggregate reporting method. The final regulations affect persons who pay winnings of $1,200 or more from bingo and slot machine play, $1,500 or more from keno, and recipients of such payments.

    DATES:

    These regulations are effective on December 30, 2016.

    FOR FURTHER INFORMATION CONTACT:

    David Bergman, (202) 317-6845 (not a toll-free number).

    SUPPLEMENTARY INFORMATION: Background

    This document contains final regulations in Title 26 of the Code of Federal Regulations under section 6041 of the Internal Revenue Code. The final regulations replace the existing information reporting requirements under § 7.6041-1 of the Temporary Income Tax Regulations under the Tax Reform Act of 1976 for persons who make reportable payments of bingo, keno, or slot machine winnings. The new requirements are set forth in a new § 1.6041-10 of the regulations. Because the new requirements replace the existing requirements, the regulations under § 7.6041-1 are being removed.

    On March 4, 2015, the Treasury Department and the IRS published a notice of proposed rulemaking (REG-132253-11) in the Federal Register, 80 FR 11600, containing proposed regulations that would update the existing rules and add rules for electronically tracked slot machine play, payee identification, and an optional aggregate reporting method.

    A public hearing was held on June 17, 2015, and five speakers provided testimony. In addition, over 14,000 written public comments were received. After careful consideration of the written comments and statements made during the hearing, the proposed regulations are adopted as modified by this Treasury Decision.

    Explanation and Summary of Comments

    All of the 14,000 written comments on the notice of proposed rulemaking were considered and are available at regulations.gov or upon request. Many of these comments addressed similar issues and expressed similar points of view. These comments are summarized in this preamble. Comments pertaining to parimutuel gambling in the case of horse races, dog races, and jai alai are being considered in a separate regulations project under section 3402(q).

    Filing Requirement, Form, and Content of the Information Return

    Commentators supported the proposed rules regarding filing requirements and the form and content of the information returns required to be filed. Accordingly, the Treasury Department and the IRS conclude that the final regulations should adopt the filing requirements without modification.

    Electronically Tracked Slot Machine Play

    The proposed regulations created rules for electronically tracked slot machine play, which was defined in proposed § 1.6041-10(b)(1) as slot machine play where an electronic player system controlled by the gaming establishment (such as through the use of a player's card or similar system) records the amount a specific individual wins and wagers on slot machine play. Section 1.6041-10(b)(2)(i)(D) of the proposed regulations provided that gambling winnings for electronically tracked slot machine play are required to be reported if (1) the total amount of winnings netted against the total amount of wagers during the same session of play was $1,200 or more, and (2) at least one single win during the session was $1,200 or more without regard to the wager. A “session” of play was determined with reference to a calendar day. The changes were intended to facilitate reporting by payees on their individual income tax returns under the proposed safe harbor in Notice 2015-21, 2015-12 I.R.B. 765.

    Some commentators expressed concern regarding the feasibility of the proposed rules given existing technology and recommended that the proposed rules not be adopted. Commentators stated that one of the purposes of electronic player systems was for marketing and customer loyalty and that current systems should not be used as a mandatory method for tracking winnings and wagers for purposes of tax reporting. Moreover, commentators stated that the use of electronic player systems for tax reporting may chill customer use and have a negative effect on customer relations. In addition, some commentators stated that their electronic player systems lack the necessary controls to be used for tax reporting, and that implementing such controls may be costly and labor-intensive. Based on these comments, the final regulations do not adopt the proposed rules for electronically tracked slot machine play.

    Payee Identification Requirements

    The proposed regulations retain the rule in § 7.6041-1(c)(3) of the Temporary Income Tax Regulations that the payor must obtain two forms of identification from the payee to verify the payee's identity. However, § 1.6041-10(f) of the proposed regulations modifies the rules for acceptable identification by requiring that one of the forms of identification include the payee's photograph and by providing that the payor may accept a properly completed Form W-9 in lieu of identification that includes the payee's social security number. The proposed regulations provide that payors may rely on this provision prior to publication of final regulations in the Federal Register.

    Most commentators supported the proposed rules regarding the types of identification that can be relied on to verify a payee's identity. In particular, commentators supported the provision that allows a Form W-9 to be used as an acceptable means of verifying a payee's identity in lieu of identification that includes the payee's social security number. This rule is consistent with procedures currently used by many payors to address the fact that, today, most forms of identification that payees carry with them do not contain a social security number.

    Other commentators suggested that the list of examples of acceptable forms of government-issued identification be expanded to include tribal member identification cards issued by a federally recognized Indian tribe. Some commentators also suggested that an exception from the photo identification requirement be provided for tribal identification cards presented at tribal government gaming facilities because many tribal identification cards do not contain photographs.

    In response to the comments received, the list of examples of acceptable government-issued identification has been expanded in § 1.6041-10(e)(1) of the final regulations to include tribal member identification cards issued by a federally recognized Indian tribe. In addition, in response to comments, § 1.6041-10(d)(2) of the final regulations provides an exception to the photo identification requirement if one of the forms of identification is a tribal identification card presented at a gaming establishment owned or licensed by the tribal government that issued the tribal member identification card.

    Optional Aggregate Reporting Method and Session

    Section 1.6041-10(h) of the proposed regulations provides a new rule for an optional aggregate reporting method. Under § 7.6041-1(a), reporting of gambling winnings from bingo, keno, and slot machine play is required each time a payor makes a payment of reportable gambling winnings (i.e., a payment that meets the reporting threshold). The aggregate reporting method allows a payor who makes more than one payment of reportable gambling winnings to the same payee from the same type of game during a “session” to report the aggregate amount of such reportable gambling winnings on one Form W-2G, provided the payor satisfies certain recordkeeping requirements set forth in the regulations. Under § 1.6041-10(b)(3) of the proposed regulations, a “session” is generally defined as a period of play that begins when a patron places the first wager on a particular type of game at a gaming establishment and ends when the patron places his or her last wager on the same type of game before the end of the same calendar day at the same gaming establishment. This aggregate reporting method may be used at the payor's option. The proposed regulations provide that payors may rely on this provision prior to publication of final regulations in the Federal Register.

    Commentators were generally supportive of the proposed optional aggregate reporting method but did suggest some changes. Accordingly, the final regulations adopt the proposed optional aggregate reporting method with some modifications.

    First, the period for purposes of the aggregate reporting method in the final regulations is not referred to as a “session.” Rather, in § 1.6041-10(g) of the final regulations, the period used for purposes of the aggregate reporting method is now referred to as an “information reporting period.” The proposed regulations' definition of a “session” was intended to mirror the concept of “session” set forth in the safe harbor for the determination of wagering gains and losses from electronically tracked slot machine play that was published in a Notice and draft Revenue Procedure on the same date as the proposed regulations. Notice 2015-21. The Treasury Department and the IRS are still considering the income tax reporting rules in this area, and the draft Revenue Procedure has not been finalized. Therefore, to avoid confusion, the aggregate reporting method rules in § 1.6041-10(g) of the final regulations have been modified so that the period during which reporting may be aggregated is referred to as the “information reporting period” rather than as a “session.”

    Second, commentators suggested that rather than a calendar day, payors should have the option of using the 24-hour period known commonly in the industry as the “gaming day” for purposes of the aggregate reporting method. The comments explained that the period of a “gaming day” is used by gaming establishments for financial accounting, gaming control board, and other regulatory purposes, and allows each establishment the flexibility to define a day for these purposes by taking into account peak gaming times. The “gaming day” period is also utilized in complying with anti-money laundering reporting obligations. According to the comments, a gaming day is a 24-hour period that ends at a time during which the gaming establishment is closed or when business is slowest, typically between 3 a.m. and 6 a.m. The comments indicate that allowing payors to use the same period for purposes of information reporting as for other regulatory purposes will enhance the benefits of aggregate reporting for payors by not having a different reporting period for tax reporting, and by allowing aggregate reports to be generated during non-peak gaming times.

    To give payors more flexibility, the final regulations adopt these suggestions and provide a flexible “information reporting period” as the period to be used for aggregate reporting. Under § 1.6041-10(b)(2) of the final regulations, an “information reporting period” is either a “calendar day” or a “gaming day,” so long as that period is applied uniformly by the payor to all payees during the calendar year. A payor may adopt a different “information reporting period” from one calendar year to the next, but may not change the “information reporting period” in the middle of a calendar year. Changes to a payor's “information reporting period” from one calendar year to the next must be implemented on January 1. In addition, the final regulations provide that on December 31st, all open information reporting periods must end at 11:59 p.m. in order to end by the end of the calendar year. This rule is necessary to maintain calendar year federal income tax reporting that is the bedrock of the information reporting regime and that is required by section 6041. Section 1.6041-10(b)(2)(iii) of the final regulations provides that if a “gaming day” is adopted for a calendar year, the information reporting period for December 31st ends at 11:59 p.m. on December 31, and the information reporting period for January 1st begins at 12 a.m. on January 1, regardless of the number of hours of the December 31st and January 1st information reporting periods.

    Third, commentators noted that the proposed regulations did not specifically define “gaming establishment,” and how to deal with common ownership between various casinos. Section 1.6041-10(b)(2)(iv) of the final regulations defines the term “gaming establishment” as a business entity of a payor of reportable gambling winnings with respect to bingo, keno, or slot machine play, and includes all gaming establishments owned by the payor using the same employer identification number (EIN) issued to such payor in accordance with section 6109.

    Finally, commentators requested that the proposed recordkeeping requirements with respect to aggregate reporting be updated to reflect the actual credentials held by various casino representatives. These recordkeeping requirements require that payors maintain a record of every payment that will be reported using the aggregate reporting method and that each entry in the record be verified by a designated casino representative. Section § 1.6041-10(g)(3)(vii) of the proposed regulations requires that the designated individual provide a gaming license number. The final regulations do not require that a gaming license number be provided. Instead, § 1.6041-10(g)(3)(vii) of the final regulations requires that the person authorized by the applicable gaming regulatory control authority to ensure accuracy in reporting provide his or her unique identification number.

    Reporting Thresholds

    The proposed rules maintained the reporting thresholds of $1,200 for bingo and slot machine play and $1,500 for keno in § 7.6041-1(a), but invited comments on the feasibility of reducing these thresholds. Commentators overwhelmingly opposed the idea of reducing these reporting thresholds. Payors opposed lowering the thresholds because it would result in more reporting, which would increase compliance burdens for the industry. In fact, many commentators suggested that rather than reducing the current thresholds, they should be increased to account for inflation. These final regulations do not change the existing reporting thresholds for bingo, keno, and slot machine play.

    Netting Wagers

    The proposed regulations retain the rules in § 7.6041-1(b) that, in determining whether the reporting threshold is satisfied, the amount of winnings from bingo and slot machine play is not reduced by the amount of the wager, but the amount of winnings from one keno game is reduced by the amount of the wager in that one game. Commentators were divided as to whether uniform application of netting the wager against the winnings was feasible, citing compliance cost and labor concerns. In light of these concerns, the Treasury Department and the IRS conclude that the existing approach, as described in the proposed regulations, should be retained. Accordingly, § 1.6041-10(b)(1)(i) of the final regulations provides that reportable gambling winnings in the case of bingo and slot machine play are not determined by netting the wager against the winnings, but reportable gambling winnings in the case of keno are determined by netting the wager in that one game against the winnings from that game.

    Definition of Slot Machine and Reportable Gambling Winnings

    For purposes of information reporting, proposed § 1.6041-10(b)(4) defines a slot machine as a device that, by application of the element of chance, may deliver or entitle the person playing or operating the device to receive cash, premiums, merchandise, or tokens, whether or not the device is operated by inserting a coin, token, or similar object. One commentator suggested that the definition of slot machines be changed to adopt either of the definitions that has been adopted by the states of New Jersey or Nevada, both of which define slot machines more broadly. Other commentators suggested that the definition of slot machine in the proposed regulations is too broad because it could include technologic aids to Class II gaming as defined under the Indian Gaming Regulatory Act, 25 U.S.C. 2701-2721, such as electronic bingo or electronic pull-tabs.

    As discussed in the preamble of the proposed regulations, the definition of slot machine in proposed § 1.6041-10(b)(4) is intended to be consistent with the definition of slot machine in § 44.4402-1(b)(1) of the Wagering Tax Regulations. Having consistent definitions benefits tax administration and may prevent unintended confusion that could arise from having different definitions for federal tax purposes. Because the Treasury Department and the IRS conclude that, on balance, the proposed definition of slot machine is the most appropriate definition, the final regulations adopt the proposed definition of the term “slot machine” without modification.

    Section 1.6041-10(b)(2)(i) of the proposed regulations provides that all winnings from all cards played during one bingo game are combined and that all winnings from all “ways” on a multi-way keno ticket are combined. In addition, § 1.6041-10(b)(2)(ii) of the proposed regulations provides that winnings from different types of games are not combined to determine whether the reporting thresholds are satisfied, and that bingo, keno, and slot machine play are all different types of games. Commentators did not oppose inclusion of these rules in the definition of reportable gambling winnings in the proposed regulations. Accordingly, the final regulations adopt these aspects of the definition of reportable gambling winnings without modification.

    Special Analyses

    Certain IRS regulations, including this one, are exempt from the requirements of Executive Order 12866, as supplemented by Executive Order 13563. Therefore, a regulatory assessment is not required.

    It is hereby certified that this rule will not have a significant economic impact on a substantial number of small entities. This certification is based on the fact that this rule merely provides guidance as to the filing of information reporting returns for payors who make reportable payments of bingo, keno, or slot machine winnings and who are required by section 6041 to make returns reporting those payments. The requirement for payors to make information returns is imposed by statute and not these regulations. In addition, this rule reduces the existing burden on payors to comply with the statutory requirement by simplifying the process for payors to verify payees' identities with a broader range of documents that are more readily available, and also by allowing payors to reduce the number of information returns they issue if they adopt the new aggregate reporting methodology. Therefore, a regulatory flexibility analysis under the Regulatory Flexibility Act (5 U.S.C. Chapter 6) is not required.

    Pursuant to section 7805(f) of the Internal Revenue Code, the notice of proposed rulemaking preceding these regulations was submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on the regulations' impact on small businesses, and no comments were received.

    Drafting Information

    The principal author of these regulations is David Bergman of the Office of Associate Chief Counsel (Procedure & Administration).

    List of Subjects 26 CFR Part 1

    Income taxes, Reporting and recordkeeping requirements.

    26 CFR Part 7

    Temporary income tax regulations under the Tax Reform Act of 1976.

    26 CFR Part 31

    Employment Taxes and Collection of Income Tax at Source.

    Adoption of Amendments to the Regulations

    Accordingly, 26 CFR parts 1, 7, and 31 are amended as follows:

    PART 1—INCOME TAXES Paragraph 1. The authority citation for part 1 continues to read in part as follows: Authority:

    26 U.S.C. 7805 * * *

    Par. 2. Section 1.6041-10 is added to read as follows:
    § 1.6041-10 Return of information as to payments of winnings from bingo, keno, and slot machine play.

    (a) In general. Every person engaged in a trade or business (as defined in § 1.6041-1(b)) and who, in the course of such trade or business, makes a payment of reportable gambling winnings (defined in paragraph (b)(1) of this section) must make an information return with respect to such payment. Unless the provisions of paragraph (g) of this section (regarding aggregate reporting) apply, a separate information return is required with respect to each payment of reportable gambling winnings.

    (b) Definitions—(1) Reportable gambling winnings. (i) For purposes of this section, the term reportable gambling winnings is defined as follows:

    (A) For bingo, the term “reportable gambling winnings” means winnings of $1,200 or more from one bingo game, without reduction for the amount wagered. All winnings received from all wagers made during one bingo game are combined (for example, all winnings from all cards played during one bingo game are combined).

    (B) For keno, the term “reportable gambling winnings” means winnings of $1,500 or more from one keno game reduced by the amount wagered on the same keno game. All winnings received from all wagers made during one keno game are combined (for example, all winnings from all “ways” on a multi-way keno ticket are combined).

    (C) For slot machine play, the term “reportable gambling winnings” means winnings of $1,200 or more from one slot machine play, without reduction for the amount wagered.

    (ii) Winnings and wagers from different types of games are not combined to determine if the reporting threshold is satisfied. Bingo, keno, and slot machine play are different types of games.

    (iii) Winnings include the fair market value of a payment in any medium other than cash.

    (iv) The amount wagered in the case of a free play is zero.

    (2) Information reporting period—(i) In general. For purposes of paragraph (g) of this section, the “information reporting period” begins when a patron places the first wager on a particular type of game at a gaming establishment, as defined in paragraph (b)(2)(iv) of this section, and ends when the patron places his or her last wager on the same type of game at the same gaming establishment before the end of the “information reporting period.” An information reporting period is a 24-hour period. A payor may select a calendar day (as defined in paragraph (b)(2)(ii) of this section) or a gaming day (as defined in paragraph (b)(2)(iii) of this section) as the information reporting period for purposes of the aggregate reporting method in paragraph (g) of this section. For purposes of this paragraph (b)(2), time is determined by the time zone of the location where the patron places the wager. A payor must use the same information reporting period (a calendar day or gaming day) to report all “reportable gambling winnings” paid during the calendar year. Once selected, a payor may not change its information reporting period during a calendar year. Any changes to a payor's information reporting period from one calendar year to another must be implemented on January 1.

    (ii) Calendar day. A calendar day is determined with reference to a period beginning at 12 a.m. and ending no later than 11:59 p.m. of the same calendar day.

    (iii) Gaming day—(A) In general. A gaming day is a 24-hour period other than a calendar day (as defined in paragraph (b)(2)(ii) of this section) selected by the payor, subject to the special rules for December 31 and January 1 in paragraphs (b)(2)(iii)(B) and (C) of this section.

    (B) Special rule for December 31. For purposes of paragraph (b)(2)(iii) of this section, the gaming day that begins on December 31 of any calendar year ends at 11:59 p.m. on December 31, regardless of the time on December 31 on which that gaming day began.

    (C) Special rule for January 1. For purposes of paragraph (b)(2)(iii) of this section, the gaming day of January 1 begins at 12:00 a.m. on January 1, regardless of the time and calendar day on which that gaming day ends, and may extend beyond 24 hours.

    (iv) Gaming establishment. For purposes of this section, a gaming establishment is a business entity of a payor of reportable gambling winnings with respect to bingo, keno, or slot machine play, and includes all gaming establishments owned by such payor using the same employer identification number (EIN) issued to such payor in accordance with section 6109.

    (v) Examples. The following examples illustrate the provisions of paragraph (b)(2) of this section.

    Example 1.

    Casino R uses the aggregate reporting method under paragraph (g) of this section to report certain reportable gambling winnings. For other regulatory purposes, Casino R uses a gaming day that begins at 3 a.m. and ends at 2:59 a.m. the following calendar day. Casino R chooses to use its gaming day as its information reporting period for purposes of paragraph (b)(2) of this section during Year 1. Accordingly, the information reporting period for purposes of paragraph (g) of this section for each day during Year 1 begins at 3 a.m. and ends at 2:59 a.m. the following day. The information reporting period for December 31 of Year 1 begins at 3 a.m. on December 31 of Year 1 and ends at 11:59 p.m. on December 31 of Year 1. The information reporting period for January 1 of Year 2 begins at 12 a.m. on January 1 of Year 2 and ends at 2:59 a.m. on January 2 of Year 2.

    Example 2.

    The facts are the same as Example 1, except Casino R uses a calendar day as its information reporting period for purposes of paragraph (b)(2) of this section during Year 1. Accordingly, the information reporting period for purpose of paragraph (g) of this section for each day during Year 1 begins at 12 a.m. and ends at 11:59 p.m. on the same day.

    Example 3.

    Casino R uses the aggregate reporting method under paragraph (g) of this section to report certain reportable gambling winnings. For other regulatory purposes, Casino R uses a gaming day that begins at 9:00 p.m. and ends at 8:59 p.m. the following calendar day. Casino R chooses to use its gaming day as its information reporting period for purposes of paragraph (b)(2) of this section during Year 1. Accordingly, the information reporting period for purposes of paragraph (g) of this section for each day during Year 1 begins at 9:00 p.m. and ends at 8:59 p.m. the following day. The information reporting period for December 31 of Year 1 begins at 9:00 p.m. on December 30 and ends at 8:59 p.m. on December 31. A second information reporting period for December 31 then begins at 9:00 p.m. on December 31 and ends at 11:59 p.m. on December 31. The information reporting period for January 1 of Year 2 begins at 12:00 a.m. on January 1 and ends at 8:59 p.m. on January 1 of Year 2.

    Example 4.

    Casino R uses the aggregate reporting method under paragraph (g) of this section to report certain reportable gambling winnings. In Year 1, Casino R chooses to use a “gaming day” that begins at 3 a.m. and ends at 2:59 a.m. the following day as its information reporting period. During the course of Year 1, Casino R decides that it would like to change its information reporting period to instead begin at 5 a.m. and end at 4:59 a.m. the following day. Casino R must wait until January 1 of Year 2 to implement such a change. On January 1 of Year 2, Casino R's information reporting period will begin at 12 a.m. and end at 4:59 a.m. on January 2. On December 31 of Year 2, Casino R's information reporting period will begin at 5 a.m. and end at 11:59 p.m.

    (3) Slot machine. The term “slot machine” means a device that, by application of the element of chance, may deliver, or entitle the person playing or operating the device to receive cash, premiums, merchandise, or tokens whether or not the device is operated by insertion of a coin, token, or similar object.

    (c) Prescribed form; time and place for filing the return. The return described in paragraph (a) of this section is a Form W-2G, “Certain Gambling Winnings.” The Form W-2G must be filed with the appropriate Internal Revenue Service location designated in the instructions to the form on or before February 28 (March 31, if filed electronically) of the year following the calendar year in which the reportable gambling winnings were paid. See section 6011 and § 1.6011-2 for requirements to file electronically.

    (d) Information included on the return—(1) In general. Each return required by paragraph (a) of this section must contain:

    (i) The name, address, and taxpayer identification number of the payor;

    (ii) The name, address, and taxpayer identification number of the payee;

    (iii) A general description of the two types of identification (as described in paragraph (e) of this section), one of which must have the payee's photograph on it (except in the case of tribal member identification cards in certain circumstances as described in paragraph (d)(2) of this section) that the payor relied on to verify the payee's name, address, and taxpayer identification number;

    (iv) The date and amount of payment;

    (v) The type of wagering transaction (bingo, keno, or slot machine play);

    (vi) In the case of a bingo or keno game, any number, color, or other designation assigned to the game for which the payment is made;

    (vii) In the case of slot machine play, the identification number of the slot machine(s) (for example, location and asset number);

    (viii) Any other information required by the forms, instructions, revenue procedures, or other applicable guidance published in the Internal Revenue Bulletin.

    (2) Special rule for tribal member identification cards. A tribal member identification card need not contain the payee's photograph to meet the identification requirement described in paragraph (d)(1)(iii) of this section if:

    (i) The payee is a member of a federally recognized Indian tribe;

    (ii) The payee presents the payor with a tribal member identification card issued by a federally recognized Indian tribe stating that the payee is a member of such tribe; and

    (iii) The payor is a gaming establishment (as described in paragraph (b)(2)(iv) of this section) owned or licensed (in accordance with 25 U.S.C. 2710) by the tribal government that issued the tribal member identification card referred to in (d)(2)(ii).

    (3) Special rule for optional aggregate reporting method. In the case of aggregate reporting under paragraph (g) of this section, the amount of the payment in paragraph (d)(1)(iv) of this section is the aggregate amount of payments of reportable gambling winnings from the same type of game (bingo, keno, or slot machine play) made to the same payee during the same information reporting period (as defined in paragraph (b)(2) of this section). Unless otherwise provided in forms, instructions, or other guidance, in the case of aggregate reporting under paragraph (g) of this section, the information required by paragraphs (d)(1)(v) through (viii) of this section must be maintained by the payor as described in paragraph (g)(3) of this section.

    (e) Identification. The following items are treated as identification for purposes of paragraph (d)(1)(iii) of this section—

    (1) Government-issued identification (for example, a driver's license, passport, social security card, military identification card, tribal member identification card issued by a federally recognized Indian tribe, or voter registration card) in the name of the payee; and

    (2) A Form W-9, “Request for Taxpayer Identification Number and Certification,” signed by the payee, that includes the payee's name, address, taxpayer identification number, and other information required by the form. A Form W-9 is not acceptable for this purpose if the payee has modified the form (other than pursuant to instructions to the form) or if the payee has deleted the jurat or other similar provisions by which the payee certifies or affirms the correctness of the statements contained on the form.

    (f) Furnishing a statement to the payee. Every payor required to make a return under paragraph (a) of this section must also make and furnish to each payee, with respect to each payment of reportable gambling winnings, a written statement that contains the information that is required to be included on the return under paragraph (d) of this section. The payor must furnish the statement to the payee on or before January 31st of the year following the calendar year in which payment of the reportable gambling winnings is made. The statement will be considered furnished to the payee if it is provided to the payee at the time of payment or if it is mailed to the payee on or before January 31st of the year following the calendar year in which payment was made.

    (g) Aggregate reporting of bingo, keno, and slot machine winnings—(1) In general. In lieu of filing a separate information return for each payment of reportable gambling winnings as required by paragraph (a) of this section, a payor may use the aggregate reporting method (defined in paragraph (g)(2) of this section) to report reportable gambling winnings from bingo, keno, or slot machine play. A payor using the aggregate reporting method to file information returns under paragraph (a) of this section must also furnish statements to the payee under paragraph (f) of this section using the aggregate reporting method.

    (2) Aggregate reporting method defined. (i) The aggregate reporting method is a method of reporting more than one payment of reportable gambling winnings from the same type of game (bingo, keno, or slot machine play) made to the same payee during the same information reporting period (as defined in this paragraph (b)(2) of this section) on one information return or statement.

    (ii) A payor may use the aggregate reporting method for payments to some payees and not others, at its own discretion. In addition, with respect to a single payee, the payor may use the aggregate reporting method to report winnings from one type of game, but not for winnings from another type of game.

    (iii) Failure to report some reportable gambling winnings from a particular type of game during one information reporting period to a particular payee under the aggregate reporting method (for whatever reason, including because the winnings are not permitted to be reported using the aggregate reporting method under paragraph (g)(4) of this section) will not disqualify the payor from using the aggregate reporting method to report other reportable gambling winnings from that type of game during that information reporting period to that payee. The payor may stop using the aggregate reporting method for a particular payee or for all payees before the end of the payor's information reporting period for any reason.

    (3) Recordkeeping under the aggregate reporting method. A payor using the aggregate reporting method must maintain a record of every payment of reportable gambling winnings from the same type of game made to the same payee during the information reporting period that will be reported using the aggregate reporting method. Every individual that the payor has determined is responsible for an entry in the record must confirm the information in the entry by signing the record in a manner that will enable the signature to be associated with the relevant entry. Each payment of a reportable gambling winning made to the same payee and reported under the aggregate reporting method must have its own entry in the record, however, the information required by paragraphs (d)(1)(i) through (iii) of this section is not required to be recorded more than one time per information reporting period. A payor that uses the aggregate reporting method must retain a copy of the record in its files. The record (which may be electronic provided the requirements set forth in forms, instructions, or guidance published in the Internal Revenue Bulletin are met) must include the following information about each payment:

    (i) The payee's signature confirming the information in the record;

    (ii) The information required under paragraph (d) of this section;

    (iii) The time of the win resulting in the reportable gambling winnings;

    (iv) The total amount of reportable gambling winnings with respect to all payments to the payee during the information reporting period;

    (v) The amount of reportable gambling winnings with respect to each particular payment;

    (vi) The method of payment to the payee (for example, cash, check, voucher, credit, token, or chips); and

    (vii) The name and unique identification number of the individual who the payor has determined is responsible for ensuring that the entry with respect to the reportable gambling winnings (including the general description of two types of identification used to verify the payee's name, address, and taxpayer identification number) is complete and accurate and who is authorized to perform that function by the applicable gaming regulatory control authority. Such individual may or may not be the same individual who prepared the entry.

    (4) When the aggregate reporting method may not be used. A payor cannot use the aggregate reporting method if—

    (i) The payment is to a foreign person, as described in section 1.6041-10(h);

    (ii) The payor knows or has reason to know that the person making the wager is not the person entitled to the winnings or is not the only person entitled to the winnings (regardless of whether the person making the wager furnishes a Form 5754, “Statement by Person(s) Receiving Gambling Winnings”); or

    (iii) Backup withholding under section 3406(a) applies to the payment.

    (5) Examples. The following examples illustrate the provisions of this section. For each example, assume that for purposes of the aggregate reporting method in paragraph (g) of this section, Casino R's “information reporting period” for all calendar years is a gaming day that begins at 3 a.m. and ends at 2:59 a.m. the following day (except for January 1 and December 31) and that individuals C, D, and E are U.S. persons.

    Example 1.

    On Day 1, between 7 a.m. and 4 p.m., C places five wagers at casino R on five different slot machines. The first two wagers result in no win. The third wager results in a $1,500 win. The fourth wager results in a $2,500 win. The fifth wager results in an $800 win:

    (i) Under paragraph (b)(1)(i)(C) of this section, there are reportable gambling winnings from the slot machine play of $4,000 ($1,500 + $2,500). The $800 win is not a reportable gambling winning from slot machine play because it does not equal or exceed the $1,200 threshold.

    (ii) Because all of the amounts were won on the same type of game (even though each of the winnings occurred on different machines) during the same information reporting period, R is permitted to use the aggregate reporting method under this paragraph (g). If R decides not to use the aggregate reporting method, a separate Form W-2G would have to be filed and furnished for the payment of reportable gambling winnings of $1,500 and for the payment of reportable gambling winnings of $2,500. However, if R decides to use the aggregate reporting method, R may report total reportable gambling winnings from slot machine play of $4,000 ($1,500 + $2,500) on one Form W-2G.

    Example 2.

    Assume the same facts as Example 1, except that in addition to the winnings described in Example 1, at 5 a.m. on Day 2, C wins $3,250 from one slot machine play at casino R. Even though C played the same type of game (slot machine play) on Day 1 and Day 2, under paragraph (b)(2) of this section, the win at 5 a.m. on Day 2 is a win during a separate information reporting period. Under paragraph (g)(2)(i) of this section, the $3,250 of reportable gambling winnings on Day 2 cannot be aggregated with the reportable gambling winnings of $4,000 from Day 1 on a single Form W-2G. Accordingly, if R uses the aggregate reporting method, R must file two Forms W-2G with respect to C's reportable gambling winnings on Day 1 and Day 2. R must report $4,000 of reportable gambling winnings from slot machine play paid to C on Day 1 on the first Form W-2G, and $3,250 of reportable gambling winnings from slot machine play paid to C on Day 2 on the second Form W-2G.

    Example 3.

    On December 31 of Year 1 at 4:00 p.m., C wins $10,000 from one slot machine play at casino R. At 12:30 a.m. on January 1 of Year 2, C wins $4,000 from one slot machine play at casino R. Under paragraphs (b)(2)(iii)(B) and (C) of this section, the win at 4 p.m. on December 31 of Year 1 and the win at 12:30 a.m. on January 1 of Year 2 are wins during different information reporting periods. Under paragraph (g)(2)(i) of this section, the $4,000 of reportable gambling winnings on January 1 cannot be aggregated with the reportable gambling winnings of $10,000 from December 31 on a single Form W-2G. Accordingly, if R uses the aggregate reporting method, R must file two Forms W-2G with respect to C's reportable gambling winnings on Day 1 and Day 2. R must report $10,000 of reportable gambling winnings from slot machine play paid to C on December 31 on the first Form W-2G and $4,000 of reportable gambling winnings from slot machine play paid to C on January 1 on the second Form W-2G.

    Example 4.

    Assume the same facts as example 3, except that C also wins $5,000 from one slot machine play at 3:30 p.m. on January 1 and $7,000 from one slot machine play at 1:30 a.m. on January 2. Under the special rule of paragraph (b)(2)(iii) of this section, the “information reporting period” begins at 12:00 a.m. on January 1 and extends until the start of the next information reporting period, in this case 2:59 a.m. on January 2. Under paragraph (b)(1)(C) of this section, Casino R will pay C a total of $26,000 ($10,000 + $4,000 + $5,000 + $7,000) in reportable gambling winnings; however, $10,000 must be reported in Year 1, and $16,000 must be reported in Year 2. Because all of the amounts won in Year 2 were won on the same type of game and during the same information reporting period, R is permitted to use the aggregate reporting method under this paragraph (g). If R decides to use the aggregate reporting method, R may report $10,000 of reportable gambling winnings from slot machine play paid to C on December 31 on the first Form W-2G and $16,000 of total reportable gambling winnings from slot machine play paid to C on January 1 on the second Form W-2G.

    Example 5.

    At 2 p.m. on Day 1, D won $2,000 (after reducing the amount of the win by the amount wagered) playing one keno game at casino R. D provides R with his driver's license. The driver's license has D's photograph on it, as well as D's name and address. The driver's license does not include D's social security number. D cannot remember his social security number and has no other identification at the time with his social security number on it. D does not provide R with his social security number before R pays the winnings to D. Because D cannot remember his social security number, D cannot complete and sign a Form W-9. R deducts and withholds $560 (28 percent of $2,000) under the backup withholding provisions of section 3406(a) and pays the remaining $1,440 in winnings to D. D returns to casino R and at 6 p.m. on Day 1 wins $1,500 (after reducing the amount of the win by the amount wagered) in one keno game. D provides R with his driver's license as well as D's social security card. R generally uses the aggregate reporting method and in all cases where it is used, R complies with the requirements of this paragraph (g). At 8 p.m. and 10 p.m. on Day 1, D wins an additional $1,800 and $1,700 (after reducing the amount of the win by the amount wagered), respectively, from two different keno games. For each of these two wins, an employee of R obtains the information from D required by this paragraph (g):

    (i) Under paragraph (b)(1)(i)(B) of this section, each of D's wins from the four games of keno on Day 1 ($2,000, $1,500, $1,800, and $1,700) are reportable gambling winnings. Because D's first win on Day 1 was at 2 p.m. and D's last win on Day 1 was at 10 p.m., all of D's reportable gambling winnings from keno are won during the same information reporting period. Because R satisfies the requirements of paragraph (g)(2)(i), R may use the aggregate reporting method to report D's reportable gambling winnings from keno. However, pursuant to paragraph (g)(4)(iii) of this section, the $2,000 payment made to D at 2 p.m. cannot be reported under the aggregate reporting method because that payment was subject to backup withholding. Accordingly, if R uses the aggregate reporting method under this paragraph (g), R will have to file two Forms W-2G with respect to D's reportable gambling winnings from keno on Day 1. On the first Form W-2G, R will report $2,000 of reportable gambling winnings and $560 of backup withholding with respect to the 2 p.m. win from keno, and, on the second Form W-2G, R will report $5,000 of reportable gambling winnings from keno (representing the three payments of $1,500, $1,800, and $1,700 that D won between 6 p.m. and 10 p.m. on Day 1).

    Example 6.

    In one information reporting period on Day 1, E won five reportable gambling winnings from five different bingo games at a casino R. R generally uses the aggregate reporting method and in all cases where it is used, R complies with the requirements of this paragraph (g). Although E signed the entry in the record R maintains for payment of the first four reportable gambling winnings, E refuses to sign the entry in the record for the fifth payment of reportable gambling winnings. R may use the aggregate reporting method for the first four payments of reportable gambling winnings to E. However, because the entry in the record for the fifth payment of reportable gambling winnings does not include E's signature, as required by paragraph (g)(3)(i) of this section, that payment may not be reported under the aggregate reporting method. Accordingly, if R uses the aggregate reporting method under paragraph (g) of this section, R must prepare two Forms W-2G as follows: On the first Form W-2G, R must report the first four payments of reportable gambling winnings from bingo made to E on Day 1. On the second Form W-2G, R must report the fifth payment of reportable gambling winnings from bingo made to E on Day 1.

    (h) Payments to foreign persons. See § 1.6041-4 regarding payments to foreign persons. See § 1.6049-5(d) for determining whether the payee is a foreign person.

    (i) Effective/applicability date. Section 1.6041-10(b)(2), concerning payor-selected “information reporting periods,” applies to payments of reportable gambling winnings from bingo, keno, or slot machine play made on or after January 1 of the year following the date these regulations are published in the Federal Register. All other sections contained herein apply to payments of reportable gambling winnings from bingo, keno, or slot machine play made on or after December 30, 2016.

    (j) Cross-references for certain gambling winnings. For provisions relating to backup withholding for winnings from bingo, keno, and slot machine play and other reportable gambling winnings, see § 31.3406(g)-2(d). For provisions relating to withholding and reporting for gambling winnings from lotteries, sweepstakes, wagering pools, and other wagering transactions, including a wagering transaction in a parimutuel pool with respect to horse races, dog races, or jai alai, see § 31.3402(q)-1.

    PART 7—TEMPORARY INCOME TAX REGULATIONS UNDER THE TAX REFORM ACT OF 1976 Par. 3. The authority citation for part 7 continues to read in part as follows: Authority:

    26 U.S.C. 7805 * * *

    § 7.6041-1 [Removed]
    Par. 4. Section 7.6041-1 is removed. PART 31—EMPLOYMENT TAXES AND COLLECTION OF INCOME TAX AT SOURCE Par. 5. The authority citation for part 31 continues to read in part as follows: Authority:

    26 U.S.C. 7805 * * *

    § 31.3406(g)-2 [Amended]
    Par. 6. In § 31.3406(g)-2, paragraph (d)(3) is amended by removing the citation “§ 7.6041-1” and adding the citation “§ 1.6041-10” in its place. John Dalrymple, Deputy Commissioner for Services and Enforcement. Approved: December 13, 2016. Mark J. Mazur, Assistant Secretary of the Treasury (Tax Policy).
    [FR Doc. 2016-31575 Filed 12-29-16; 8:45 am] BILLING CODE 4830-01-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket No. USCG-2016-0939] Liberty Island Safety Zone; Fireworks Display in Captain of the Port New York Zone AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of enforcement of regulation.

    SUMMARY:

    The Coast Guard will enforce a safety zone within the Captain of the Port New York Zone on the specified date and time. This action is necessary to ensure the safety of vessels and spectators from hazards associated with fireworks displays. During the enforcement period, no person or vessel may enter the safety zone without permission of the Captain of the Port (COTP).

    DATES:

    The regulation for the safety zone described in 33 CFR 165.160 will be enforced on the date and time listed in the table below.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this notice, call or email Petty Officer First Class Ronald Sampert, U.S. Coast Guard; telephone 718-354-4154, email [email protected]

    SUPPLEMENTARY INFORMATION:

    The Coast Guard will enforce the safety zone listed in 33 CFR 165.160 on the specified date and time as indicated in Table 1 below. This regulation was published in the Federal Register on November 9, 2011 (76 FR 69614).

    Table 1 1. Circle Line Sightseeing Yachts, NYE, Liberty Island Safety Zone, 33 CFR 165.160 (2.1) • Launch site: A barge located in approximate position 40°41′16.5″ N, 074°02′23″ W (NAD 1983), approximately 360 yards east of Liberty Island. This Safety Zone is a 240-yard radius from the barge. • Date: December 31, 2016 • Time: 11:55 p.m.-12:10 a.m.

    Under the provisions of 33 CFR 165.160, vessels may not enter the safety zone unless given permission from the COTP or a designated representative. Spectator vessels may transit outside the safety zones but may not anchor, block, loiter in, or impede the transit of other vessels. The Coast Guard may be assisted by other Federal, State, or local law enforcement agencies in enforcing this regulation.

    This notice is issued under authority of 33 CFR 165.160(a) and 5 U.S.C. 552(a). In addition to this notice in the Federal Register, the Coast Guard will provide mariners with advanced notification of enforcement periods via the Local Notice to Mariners and marine information broadcasts.

    If the COTP determines that a safety zone need not be enforced for the full duration stated in this notice, a Broadcast Notice to Mariners may be used to grant general permission to enter the safety zone.

    Dated: December 7, 2016. M. H. Day, Captain, U.S. Coast Guard, Captain of the Port New York.
    [FR Doc. 2016-31531 Filed 12-29-16; 8:45 am] BILLING CODE 9110-04-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 58 [EPA-HQ-OAR-2015-0486; FRL-9957-78-OAR] RIN 2060-AS71 Revision to the Near-road NO2 Minimum Monitoring Requirements AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    This action finalizes revisions to the minimum monitoring requirements for near-road nitrogen dioxide (NO2) monitoring by removing the existing requirements for near-road NO2 monitoring stations in Core Based Statistical Areas (CBSAs) having populations between 500,000 and 1,000,000 persons, that are due by January 1, 2017.

    DATES:

    This final rule is effective December 30, 2016.

    ADDRESSES:

    The EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2015-0486. All documents in the docket are listed at http://www.regulations.gov. Although listed in the index, some information may not be publicly available, e.g., Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available electronically through www.regulations.gov. In addition to being available in the docket, an electronic copy of the rule will also be available at https://www.epa.gov/no2-pollution/ambient-nitrogen-dioxide-monitoring-requirements.

    FOR FURTHER INFORMATION CONTACT:

    Mr. Nealson Watkins, Air Quality Assessment Division, Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Mail code C304-06, Research Triangle Park, NC 27711; telephone: (919) 541-5522; fax: (919) 541-1903; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Administrative Procedure Act: Section 553(d) of the Administrative Procedure Act (APA), 5 U.S.C. Chapter 5, generally provides that rules may not take effect earlier than 30 days after they are published in the Federal Register. The Environmental Protection Agency (EPA) is issuing this final rule under section 307(d)(1) of the Clean Air Act, which states: “The provisions of section 553 through 557 . . . of Title 5 shall not, except as expressly provided in this section, apply to actions to which this subsection applies.” Thus, section 553(d) of the APA does not apply to this rule. The EPA is nevertheless acting consistently with the purposes underlying APA section 553(d) in making this rule effective no later than January 1, 2017. Section 553(d) allows an effective date less than 30 days after publication for a rule that “grants or recognizes an exemption or relieves a restriction” or “as otherwise provided by the agency for good cause found and published with the rule.” The EPA finds that there is good cause for this rule to become effective immediately, because this rule removes a restriction. Specifically, this final rule removes the requirement for states to install air quality monitors in certain areas by January 1, 2017.

    Judicial Review: This is a nationally applicable rulemaking because it revises generally applicable monitoring network requirements. Even if this rulemaking were not considered nationally applicable, EPA has determined that this action is of nationwide scope and effect because the monitors that will no longer be required under this rulemaking are located in 28 states, which fall within the jurisdiction of all 10 federal courts of appeals. Therefore, under CAA section 307(b)(1), judicial review of this final rule is available only by filing a petition for review in the U.S. Court of Appeals for the D.C. Circuit by February 28, 2017.

    Table of Contents

    The following topics are discussed in this preamble:

    I. Background II. Proposed Revisions to the Near-Road NO2 Minimum Monitoring Requirements III. Public Comments IV. Conclusion and Final Action V. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulations and Regulatory Review B. Paperwork Reduction Act (PRA) C. Regulatory Flexibility Act (RFA) D. Unfunded Mandates Reform Act (UMRA) E. Executive Order 13132: Federalism F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer and Advancement Act (NTTAA) J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations K. Congressional Review Act I. Background

    On February 9, 2010, the EPA promulgated minimum monitoring requirements for the ambient NO2 monitoring network in support of the revised NO2 NAAQS (75 FR 6474; February 9, 2010). The 2010 NO2 NAAQS revision introduced a 1-hour standard with a 98th percentile form averaged over 3 years and a level of 100 parts per billion (ppb), reflecting the maximum allowable NO2 concentration anywhere in an area, while retaining the annual standard of 53 ppb.

    As part of the 2010 NO2 NAAQS rulemaking, the EPA promulgated revisions to requirements for minimum numbers of ambient NO2 monitors which included new monitoring near major roads in larger urban areas, requirements to characterize NO2 concentrations representative of wider spatial scales in larger urban areas (area-wide monitors), and monitors intended to characterize NO2 exposures of susceptible and vulnerable populations. Specifically, the requirements for these minimum monitoring requirements that were promulgated in 2010 were as follows:

    (a) The first tier of the ambient NO2 monitoring network required near-road monitoring.1 The requirements included the placement of one near-road NO2 monitoring station in each CBSA with a population of 500,000 or more persons to monitor a location of expected maximum hourly concentrations sited near a major road. An additional near-road NO2 monitoring station was required at a second location of expected maximum hourly concentrations for any CBSA with a population of 2,500,000 or more persons, or in any CBSA with a population of 500,000 or more persons that has one or more roadway segments with 250,000 or greater Annual Average Daily Traffic (AADT) counts. Based upon 2010 census data and data maintained by the U.S. Department of Transportation's Federal Highway Administration on the most heavily trafficked roads in the U.S. (http://www.fhwa.dot.gov/policyinformation/tables/02.cfm), approximately 126 near-road NO2 sites were required within 103 CBSAs nationwide at the time of rule promulgation.

    1 See 40 CFR part 58, appendix D, section 4.3.2.

    (b) The second tier of the NO2 network required area-wide NO2 monitoring,2 where area-wide means that the monitor is representative of a spatial scale of representativeness of neighborhood scale (0.5 to 4 km in dimension) or larger, as defined in 40 Code of Federal Regulations (CFR) part 58, appendix D, section 1.2. Requirements included the placement of one monitor in each CBSA with a population of 1,000,000 or more persons to monitor a location of expected highest NO2 concentrations representing the neighborhood or larger spatial scales. Based on 2010 census data, approximately 52 area-wide NO2 sites were required within 52 CBSAs at the time of rule promulgation.

    2 See 40 CFR part 58, appendix D, section 4.3.3.

    (c) The third tier of the NO2 minimum monitoring requirements was for the characterization of NO2 exposure for susceptible and vulnerable populations.3 The EPA Regional Administrators, in collaboration with states, required 40 NO2 monitoring stations nationwide in any area, inside or outside of CBSAs, in addition to the minimum monitoring requirements for near-road and area-wide monitors, with a primary focus on monitoring in locations with susceptible and vulnerable populations. Monitoring sites intended to satisfy these NO2 minimum monitoring requirements were required to be submitted to the EPA for approval. Per 40 CFR 58.10 and 58.13, states were required to submit a plan to the EPA for establishing required area-wide NO2 monitoring sites and those NO2 monitoring sites intended to represent areas with susceptible and vulnerable populations by July 1, 2012, and ensure that the monitoring stations were operational by January 1, 2013. State and local air monitoring agencies fulfilled the requirements for area-wide monitors and those sites representing areas with susceptible and vulnerable populations on schedule.

    3 See 40 CFR part 58, appendix D, section 4.3.4.

    The near-road component of the ambient NO2 monitoring network was also originally required to be completely operational by January 1, 2013. However, in 2012, the EPA proposed (77 FR 64244; October 19, 2012) and then finalized in 2013 (78 FR 16184; March 14, 2013), through a public notice and comment rulemaking, a requirement that the near-road NO2 monitoring stations be installed in three phases. The revised installation schedule allowed more time for states to establish the near-road NO2 network on a schedule consistent with available resources. The revised installation schedule for the near-road NO2 monitoring network was modified to reflect the following:

    Phase 1: In CBSAs with a population of 1,000,000 or more persons, one near-road NO2 monitor shall be reflected in the state Annual Monitoring Network Plan submitted July 1, 2013, and that monitor shall be operational by January 1, 2014.

    Phase 2: In CBSAs where two near-road NO2 monitors are required (either because the CBSA has a population of 2,500,000 or more persons, or has a population of 500,000 or more persons plus one or more roadway segments having AADT counts of 250,000 or more), the second near-road NO2 monitor shall be reflected in the state Annual Monitoring Network Plan submitted July 1, 2014, and that monitor shall be operational by January 1, 2015.

    Phase 3: In CBSAs with a population of at least 500,000 persons, but less than 1,000,000 persons, one near-road NO2 monitor shall be reflected in the state Annual Monitoring Network Plan submitted July 1, 2016, and the monitor shall be operational by January 1, 2017.

    As of November of 2016, the EPA estimates that 69 near-road NO2 monitors are in operation. At the time of this rulemaking, the EPA notes that a handful of near-road sites (4 from Phase 1 and 6 from Phase 2) are still in the process of being installed due to various delays at the state and local level. A review of near-road site meta-data indicate that state and local air monitoring agencies have successfully installed these new monitors in the appropriate locations, collectively placing monitors adjacent to highly trafficked roads in their respective CBSAs. The latest available near-road NO2 monitoring site meta-data can be found at http://www3.epa.gov/ttn/amtic/nearroad.html.

    II. Proposed Revisions to Near-Road NO2 Minimum Monitoring Requirements

    We proposed revisions to the near-road NO2 minimum monitoring requirements (81 FR 30224) on May 16, 2016, to remove the requirement for near-road NO2 monitoring stations in CBSAs having populations between 500,000 and 1,000,000 persons, also known as Phase 3 of the near-road NO2 network. The proposal also included a revision to the requirement for a second near-road NO2 monitor in any CBSA having 500,000 or more persons that also had one or more road segments with 250,000 or greater AADT counts to only apply to CBSAs having 1,000,000 or more persons, which was intended to align all near-road NO2 monitoring requirement language to only apply to those CBSAs having 1,000,000 persons or more.

    The proposed removal of Phase 3 of the required near-road NO2 network was based on empirical data and technical rationale, which were discussed in detail in the preamble to the proposed rule and supported by the Near-road NO2 Network and Data Analysis memo to the docket (docket memo) located at https://www.regulations.gov/docket?D=EPA-HQ-OAR-2015-0486. The three key foundations of the proposal were that:

    • The Phase 1 and Phase 2 near-road sites that have been installed to date are located at maximum concentration locations consistent with the guidance in the Near-road NO2 Monitoring Technical Assistance Document (TAD) (http://www3.epa.gov/ttn/amtic/files/nearroad/NearRoadTAD.pdf) as demonstrated by a detailed examination of site meta-data.

    • The higher populated CBSAs that contain these near-road NO2 sites have higher mobile source emissions and associated indicators, such as Vehicle Miles Traveled (VMTs), than lesser populated CBSAs.

    • Ambient concentrations collected at all existing near-road monitoring sites are well below both the annual and 1-hour daily maximum NAAQS levels of 53 ppb and 100 ppb, respectively.

    III. Public Comments

    The EPA received 22 individual submissions on the proposal during the public comment period from public health and environmental groups, industry groups, state and local air monitoring agencies and multi-agency groups, and one anonymous public commenter.4

    4 The single anonymous public commenter provided comments that were not within the scope of this rule action, as they requested a revision of the NO2 NAAQS. That comment is not within the scope of today's action because the EPA did not propose any revisions relating to the level of the NAAQS.

    Overall, 18 of the 22 commenters supported the proposal. This included all 14 state or multi-state groups: Association of Air Pollution Control Agencies (AAPCA); Akron Regional Air Quality Management District (ARAQMD); Central States Air Resource Agencies Association (CENSARA); Colorado; Georgia; Iowa; Kentucky; Michigan; National Association of Clean Air Agencies (NACAA); Northeast States for Coordinated Air Use Management (NESCAUM); North Carolina; Regional Air Pollution Control Agency, Dayton, OH (RAPCA); South Carolina; and Wisconsin. In addition, all 4 of the industry commenters voiced support of the proposal, including: American Petroleum Institute (API); American Road and Transportation Builders Association (ARTBA); NAAQS Implementation Coalition; and the Utility Air Regulatory Group (UARG).

    Those commenters who supported the proposal primarily reiterated that the use of existing network data and meta-data, plus other supporting data, provide the rationale necessary to finalize the proposed changes to remove requirements for Phase 3 monitors from the near-road NO2 network requirements. For example, AAPCA stated that the “. . . [proposed] revision is based on clear evidence from Phases 1 and 2 of the near-road network . . .” and ultimately that the data “. . . demonstrate the need to remove the monitoring requirements for Phase 3.” The API noted that “the Agency's phased monitoring approach has provided EPA the time to collect and analyze early monitoring data, and therefore develop a more accurate view of NO2 concentrations near roads.” The API went on to state that “near-road NO2 levels in 1,000,000 resident cities represent current high end exposures which are expected to decrease due to improving fleet fuel efficiency and turnover, the same is true for smaller cities addressed by Phase 3.” Other commenters also noted Tier 3 Motor Vehicle Emissions and Fuel standards,5 which the EPA expects to reduce on-road emissions that directly contribute to near-road NO2 concentrations going into the future. For example, the Iowa Department of Natural Resources stated that “NOx emissions from mobile sources are expected to decrease with implementation of the Tier 3 engine and fuel standards. . . .” Finally, NACAA commented that its “. . . monitoring experts agree with EPA's conclusion that data collected from Phase 3 monitors, which would be located in relatively smaller CBSAs, would almost certainly measure lower or similar NO2 concentrations [than those measured in the larger CBSAs].”

    5 More information on the Tier 3 standards can be found at https://www.epa.gov/regulations-emissions-vehicles-and-engines/regulations-smog-soot-and-other-air-pollution-passenger.

    Those commenters who opposed the proposed rule included all 3 submissions from public health and environmental groups. The first of the three adverse comment submissions was collectively from the following entities: Asthma and Allergy Network, Alliance of Nurses for Healthy Environments, American Lung Association, American Public Health Association, American Thoracic Society, Asthma and Allergy Foundation of America, Children's Environmental Health Network, and Health Care Trust for America's Health. For convenience, through the remainder of this preamble, this group will be referred to as the “Public Health Organizations.” The second submission with adverse comments was collectively from the following entities: Earth Justice, Catholic Charities of the Diocese of Stockton, Clean Air Council, Clean Wisconsin, Midwest Environmental Defense Center, Natural Resources Defense Council, Valley Improvement Projects, and We Act for Environmental Justice. For convenience through the remainder of this preamble, this second group will be referred to as the “Environmental Groups.” The third submission with adverse comment to the proposed rule was from Clean Air Watch.

    The key issues raised in those adverse comments include: (1) Arguments that the proposal is inconsistent with the original reasoning behind the establishment of the near-road network requirements in the 2010 NO2 NAAQS rulemaking; (2) issues related to the near-road NO2 network design and its installation; and (3) the empirical data relied on in the rationale for the proposed rule, which commenters criticized as being of relatively limited duration and representation.

    In regard to the assertion that the proposal is inconsistent with the original reasoning behind the establishment of the near-road network, the Environmental Groups and Clean Air Watch both cited rationale provided in the 2010 NO2 NAAQS rulemaking that was used to establish the original requirements for the near-road NO2 network. They stated that the reasoning behind needing the network as it was originally required has presently not changed. The Environmental Groups stated that “EPA's proposal to eliminate the requirement to install near-road monitors in areas below 1 million people is fundamentally inconsistent with EPA's prior conclusion, and with the facts EPA found to support it.” The Clean Air Watch noted that after the 2010 NO2 NAAQS revision the Administrator had highlighted that there would be many new roadside monitors going into place.

    The EPA disagrees that the rationale for this action is inconsistent with the 2010 rule. Rather, the revision to the 2010 rule's near-road monitoring provisions is based on the EPA's evaluation of monitoring data generated after issuance of the 2010 rule. The EPA notes that the key objective of the 2010 revision to the NO2 NAAQS was to limit exposure to peak NO2 concentrations that occur anywhere in an area. In recognition of the fact that the majority of exposure risks were found to be tied to mobile sources and the lack of specific information concerning the concentrations of NO2 in the near-road environment that was available at the time, the near-road NO2 monitoring network was required to address this lack of characterization. In the 2009 NO2 NAAQS proposal, the agency noted that the NO2 monitoring network at that time was “. . .not oriented to address peak concentrations, such as the on-road and near-road environment. . .” (74 FR 34440). At the time of that proposal and the promulgation of the 2010 final rule, there was a limited amount of near-road monitored data, which consisted mostly of integrated and continuous concentration data from research studies as opposed to compliance-quality data suitable for comparison to the NAAQS. The agency used those limited data in conjunction with information collected and presented in the Integrated Science Assessment (https://www.regulations.gov/document?D=EPA-HQ-OAR-2006-0922-0048) and the Risk and Exposure Assessment (https://www.regulations.gov/document?D=EPA-HQ-OAR-2006-0922-0047) to finalize the network design that originally required at least one monitor in all CBSAs having populations of 500,000 persons or more. As was noted by several commenters on the May 2016 proposal for this rule, the final 2010 network design was described as a near-road network that would provide “. . . data from a geographically and spatially diverse set of CBSAs that supports the intent of the revised NAAQS . . .” (75 FR 6508).

    Subsequent to the 2010 NO2 NAAQS rulemaking, the EPA has received and evaluated data from near-road NO2 monitors installed in response to the requirements of the rule. As of November 2016, there are 69 operating near-road NO2 sites, with an ever increasing data record. Due to the establishment and operation of these near-road NO2 monitors, the EPA and the public now have a significantly better understanding of what ambient, near-road concentrations look like across a geographically diverse set of urban areas of differing population sizes, including several CBSAs with populations under 1,000,000 persons, than we did in 2010. It is the evaluation of these new data, not a change in the EPA's view that the near-road network reflects areas of peak NO2 concentration, which led to the EPA's conclusion that the requirement to operate additional near-road NO2 sites required by Phase 3 of the network is no longer necessary to provide adequate characterization on a national basis. These new data, which were not available during the 2010 NO2 NAAQS rulemaking provide the EPA with a different and improved understanding of near-road NO2 concentrations compared to the time when the network was originally required. In particular, these new data show that NO2 concentrations from sites adjacent to some of the nation's highest trafficked roads in the most populated CBSAs (i.e., expected maximum concentrations sites in the near-road environment) are not exceeding or even threatening to approach the level of the NAAQS. It is, therefore, evident that the degree of geographic and spatial diversity required of the near-road network is less than originally thought. Accordingly, the agency believes it is appropriate to reconsider the necessity of Phase 3 of the near-road NO2 network by leveraging empirical evidence and targeted assessments and analyses of available near-road NO2 network information, as explained in more detail in the docket memo associated with this action.

    The second issue raised by the Environmental Groups and Public Health Organizations was in regard to the network design and physical characteristics of the existing near-road NO2 network. The Public Health Organizations stated that “limiting the required monitoring to only one or two locations in cities with millions of people severely limits the information available on near-road exposure in metropolitan areas.” The Environmental Groups stated that “the information relied upon by EPA does not show that the near-road monitors installed to date have been located to detect maximum [NO2] levels.” Finally, the Public Health Organizations also stated that “new research examining the early results of some of these near-road monitors warn that the assumptions made in the initial siting decisions may not adequately reflect the wors[t] sources of highway emissions, even in major urban areas like Los Angeles.”

    With regard to the Public Health Organizations' comment that the amount of near-road monitoring in a given urban area is limited, the EPA disagrees that additional monitors are needed. The network design targets expected maximum concentrations in the near-road environment. In the 2010 NO2 NAAQS rulemaking, the near-road NO2 network was required to be installed with consideration of six key factors: AADT, fleet mix, congestion patterns, roadway design, terrain, and meteorology. These factors varied by CBSA, where quantitative data was variable in availability and quality. The consideration of these six factors was required so that near-road monitors would be placed at locations in near-road environments where peak NO2 concentrations, derived from on-road mobile sources, would be most likely to be observed within that CBSA. Because of this specific objective of the network, the need for multiple other near-road monitoring sites, above what is already required within a given CBSA to ascertain compliance with the NAAQS, is minimized.

    The EPA strongly disagrees with the assertion that the near-road monitors installed to date have not been located to detect maximum NO2 levels. The agency handled this issue through siting requirements in the CFR and through additional support via the production of the TAD. The TAD was created through collaboration amongst multiple offices across the agency, state and local air quality management agencies, the U.S. Department of Transportation, and several state departments of transportation. Further, the TAD was reviewed by the Clean Air Scientific Advisory Committee's Air Monitoring and Methods Subcommittee. The state and local air agencies' adherence to the siting requirements in the CFR and their use of the TAD is evidenced by meta-data presented and discussed in the proposal and the associated docket memo. As a result of the diligence of state and local air agencies, and the support and oversight of the agency, the near-road network meets all siting requirements and the selection of sites for the current near-road network was carried out with a high degree of success. For example, as was noted in the proposal, 55 percent of the near-road sites are adjacent to one of the top five highest trafficked road segments in their respective CBSA, 71 percent are adjacent to one of the top 10 most highly trafficked roads, and 91 percent are adjacent to one of the top 25 most highly trafficked roads. As there are thousands of road segments within each CBSA, this means that virtually all near-road monitors are adjacent to one of the most heavily trafficked roads within their respective CBSAs. And, as noted in the EPA's analysis of the existing near-road monitoring data, if the measure of traffic is adjusted for the fleet mix to account for higher oxides of nitrogen (NOX) emissions from heavy-duty diesel vehicles, an even greater percentage of near-road monitors are adjacent to the road segments where NO2 exposure is expected to be highest. Moreover, traffic volume was just one criterion out of a number of factors, plus logistical limitations, that all had bearing on site selection. These data, along with all the other data presented in the proposal and the docket memo, are indicative of a successful network deployment.

    The EPA notes that in general, ambient monitor placement is a balancing act of knowing where an ideal monitoring location might be versus the reality of actually being able to place and operate a monitor in a particular location. This concept applies to all ambient monitoring endeavors, as the physical process of siting a monitor is subject to a myriad of logistical influences including, but not limited to: Permissions for access; physical limitations on site placement including the immediate terrain, topography, or the roadway design of a target road in the specific case of near-road monitoring; safety considerations, which are particularly important and evident in near-road siting situations; and utilities availability. Considering the factors and influences involved in the near-road siting process and the known characteristics of the network, the EPA strongly asserts that the network is appropriately deployed and situated to provide measurements that are a good representation of maximum near-road NO2 concentrations that exist in a given CBSA, evidenced by meta-data presented and discussed in both the proposal and the docket memo.6

    6 In addition to the requirements for near-road monitors in state monitoring plans, the regulations also require the EPA Regional Administrators to identify locations for at least 40 additional NO2 monitoring stations nationwide beyond the minimum monitoring requirements for each state, with the primary focus on siting these additional monitors in locations to protect susceptible and vulnerable populations. Moreover, even beyond that requirement, each Regional Administrator has the discretion to require additional monitors in any area. 40 CFR part 58, appendix D, section 4.3.4(a) and (b).

    In response to the Public Health Organizations' statement that “new research examining the early results of some of these near-road monitors warn that the assumptions made in the initial siting decisions may not adequately reflect the wors[t] sources of highway emissions, even in major urban areas like Los Angeles,” the EPA would first like to point out that the research conducted for the referenced journal article did not utilize any data from the near-road NO2 network, nor did it directly measure NO2 during their on-road experiments. The data behind the referenced multi-pollutant research study were collected as part of an on-road mobile source emissions study primarily focused on improving understanding of the variability and influences on fleet-wide emissions via alternative methods of calculating emission factors. As such, the study does not indicate that information utilized in network siting decisions may not adequately reflect the worst sources of highway emissions. In fact, it does not even address near-road monitoring data from monitors installed to measure NO2 levels. Instead, the EPA believes the study reinforces the fact that the required consideration of a number of previously mentioned factors including traffic volume and fleet mix, which were important to the cited literature, were appropriate and critical to the near-road site selection process.

    The third issue raised was the claim that empirical data relied on in the proposal were too limited. To initiate their argument, the Environmental Groups stated that the “. . . EPA has virtually no emissions data for CBSAs with populations under 1 million, so EPA's claim that `higher populated CBSAs,' i.e., CBSAs over 1 million people, will have `higher mobile source emissions' is unfounded.”

    In response, the EPA notes that data presented and reviewed in the docket memo clearly show otherwise. The emissions data used in the docket memo analysis came from the 2011 National Emissions Inventory (NEI). The NEI mobile source data come from the EPA's Motor Vehicle Emissions Simulator (MOVES), which aggregates mobile source emissions data from the county level across the entire country. Therefore, the commenter's statement that the EPA has “virtually no emissions data” from CBSAs with populations less than 1 million persons, and their subsequent argument, is incorrect. Still regarding emissions data and analysis, later in their arguments the Environmental Groups state that “. . . NOX emissions coming from on-road mobile sources in areas with 1 and 2.5 million persons is nearly the same in areas with 500,000 to 1 million people,” suggesting that NOX emissions are nearly the same in the smaller populated CBSAs as they are in the larger ones, with a difference of only 3.2 percentage points. In the docket memo, the EPA presents NOX emissions inventory data, broken down by the categories of on-road mobile, non-road mobile, and all non-mobile source categories. These data are subsequently sorted into bins based on CBSA populations corresponding to the three phases by which the near-road network has been installed, plus a bin for all CBSAs with populations having less than 500,000 persons. The Environmental Group's comments are focused on the modest difference in percent contribution of on-road mobile sources to the total NOX emissions between the 500,000 to 1 million person CBSA bin (48.1 percent) and the larger CBSA bins (51.3 percent for CBSAs having between 1 million and 2.5 million persons and 55.3 percent for CBSAs having 2.5 million or more persons). However, the differences between these CBSA groups are significant when considering the actual amount of NOX in tons per year (tpy). The collective of CBSAs having 500,000 to 1 million persons have a NOX emissions profile where 48.1 percent of a total of 950,000 tpy are attributable to on-road mobile sources (i.e., 456,950 tpy). Meanwhile, the collective of CBSAs having 1 million to 2.5 million persons have a NOX emissions profile where 51.3 percent of 2,000,000 tpy are attributable to on-road mobile sources (i.e., 1,026,000 tpy) and the collective of CBSAs having 2.5 million persons or more have a NOX emissions profile where 55.3 percent of 7,500,000 tpy are attributable to on-road mobile sources (i.e., 4,147,500 tpy). It is clear by these data, and the analysis provided in the docket memo, that the larger CBSAs do in fact have much more on-road mobile source emissions than CBSAs with less than 1 million persons. Specifically, CBSAs with over 2.5 million persons have approximately 9 times more on-road mobile source NOX emissions in tpy than CBSAs with populations between 500,000 and 1 million, while the CBSAs with populations between 1 million and 2.5 million have 2.2 times more. These data support the conclusion that the larger populated CBSAs have greater potential for exposure due to marked increases in coincidence between emissions and population. See Docket Memo at pp. 9-11.

    Concluding the Public Health Organizations' and Environmental Groups' arguments, they commented that the EPA relied on monitored near-road NO2 data from too few sites, particularly from CBSAs with less than 1 million persons, to substantiate the proposed rulemaking. The Public Health Organizations stated that “. . . even if the preliminary data indicated compliance with the standards, the sparse number [of monitoring sites] leaves open many questions. . . .” The Environmental Groups argued that only having near-road NO2 data from two CBSAs with populations under 1 million persons (Boise, Idaho and Des Moines, Iowa), “. . . are not sufficient data from which to conclude that any kind of trend exists or to make any prediction about what one-hour NO2 concentrations are likely to be reported in CBSAs with populations between 500,000 and 1 million; Boise and Des Moines alone are unlikely to be representative of all other CBSAs in this category.” The Environmental Groups go on to discuss an analysis of the available near-road data and state that variability in the collected data, particularly for the 98th percentile 1-hour daily maximum values (1-hour values), makes “. . . it exceedingly hard to predict whether an individual CBSA in either group [of different CBSA population sizes] would be likely to report high or low near-road NO2 concentrations based on its population alone,” and ultimately that “. . . EPA's own data show that less-populated areas are not significantly less likely to have high near-road NO2 concentrations (98th percentile one-hour daily max).”

    Because Phases 1 and 2 of the network have nearly been fully deployed, there are sufficient data to analyze and to support a conclusion that the first two phases of the near-road monitoring network are sufficient to protect against risks associated with exposures to peak concentrations of NO2. Regarding the length of the data record, we must consider the fact that the agency has multiple years of complete data that have already been used to judge compliance against the annual standard. Between 2013 and 2015, there were 69 annual design value data points across 39 different CBSAs (some with two near-road sites) available for analysis and comparison to the NAAQS. Further, regarding hourly data during the same (2013-2015) time period, there were a similar number of 98th percentile 1-hour daily maximum concentration values available for review. There were four sites in four separate CBSAs (Boise, ID; Des Moines, IA; Detroit, MI; and St. Louis, MO) with 3 years' worth of complete data that allowed the calculation of design values for the hourly standard. Although the remaining sites did not have enough data for the hourly design value calculation, the available data still provided evidence of what hourly near-road NO2 concentrations look like across 1 or 2 years. All those data represent significant spatial representation nationally and across CBSAs of various population sizes, and were presented and discussed in the docket memo. (See Docket Memo, Figures 9, 10, and 11.) The data were ample enough to detect patterns and trends that provide an indication of whether or not near-road concentrations are threatening the NAAQS. Those indications, coupled with the understanding of NOx emissions and anticipated future emissions profiles, provided a strong basis for the proposal. We disagree that there are insufficient data on which to base our conclusions regarding the sufficiency of the near-road network. Commenters assert that the EPA has “virtually no emissions data” for CBSAs with populations under 1 million, which may have been intended to mean that the EPA has virtually no near-road NO2 air quality data for CBSAs with populations under 1 million. This is incorrect. As explained in the docket memo, EPA has complete data for a full year from two sites, one in Boise and one in Des Moines. The commenters did not provide any explanation to support their comment that there are not enough data.

    Regarding specific comments on variability of some of the data, particularly in the hourly data across different near-road sites in different CBSAs across a range of population sizes, the EPA notes that such variability is to be expected in more highly time-resolved data. Further, as explained above, each near-road site is influenced by a number of factors, which all can contribute to inter-site variability. The Environmental Groups believe that the Boise and Des Moines CBSAs would not likely be representative of all other CBSAs of the same CBSA size class, without explanation. The EPA notes that no single CBSA is expected to be totally representative of any other individual CBSA. However, as presented in the proposal and the docket memo, despite the expected variability, there are relationships within the data that are evident when analyzing emissions, traffic data, measured concentration data, and CBSA populations. Particularly, higher populated CBSAs correspondingly have more vehicles, which in turn increases the availability of mobile source derived emissions that lead to increased opportunity for higher NO2 concentrations, particularly in the near-road environment. It is these relationships that lend to the concept that higher near-road NO2 concentrations are expected in more heavily populated CBSAs as compared to those with lesser populations.7

    7 The commenters claim that the variability makes it difficult to predict NO2 levels in a particular CBSA based on population alone, pointing to 2015 data showing one-hour concentrations in certain CBSAs with population between 1 million and 2.5 million that were higher than concentrations in some CBSAs with more than 2.5 million people. While NO2 levels can vary from hour-to-hour, the EPA notes that the levels commenters refer to are all well below the level of the NO2 NAAQS. (e.g., the 98th percentile level in Providence, RI, is 67.4 ppb, which is well below the one-hour NAAQS of 100 ppb). See Docket Memo, Figure 11.

    It is also critical to conduct an analysis of the available near-road data. The analysis of all these data, which include data from the most heavily populated CBSAs and two CBSAs having populations between 500,000 and 1 million persons, reveals that there are no design values for either the annual or hourly NAAQS, or even a single 98th percentile 1-hour daily maximum value, that are approaching or exceeding the NAAQS. The highest recorded values throughout the 2013-2015 time period, analyzed and presented in the docket memo, were an annual average of 27 ppb in Los Angeles and an 98th percentile 1-hour value of 72 ppb from an incomplete year of data in New York City. In comparison, the NO2 annual standard level is 53 ppb and the 98th percentile 1-hour daily maximum standard level averaged over 3 years is 100 ppb. The fact that no data collected to date have exceeded or are threatening to the NAAQS is paramount to the reasoning behind the approach to revise network requirements. There are no compelling concentration data or meta-data that indicate that the smaller CBSAs would be expected to have near-road NO2 concentrations at or above those measured in more heavily populated CBSAs that have sites proximate to more heavily trafficked roads.

    Further, the EPA expects a continuation in the reduction of on-road mobile source emissions on a per vehicle basis as a result of the implementation of mobile source standards such as the Tier 3 engine and fuel standards, which was echoed in the public comments. These continuing emission reductions should reduce the amount of measured NO2 in the near-road environment, although other factors such as changes in traffic volume can impact those reductions.

    Finally, the EPA notes that EPA Regional Administrators have the authority to work with state and local air monitoring agencies to require monitoring above the minimum requirements as needed to address a situation where near-road NO2 concentrations are suspected to be approaching or exceeding the NAAQS. Accordingly, near-road monitoring could subsequently be required in smaller CBSAs should circumstances indicate the need to provide additional characterization beyond the monitoring provided by Phases 1 and 2 of the network. This Regional Administrator authority serves as an effective backstop against any unusual situation that could occur where monitoring might be warranted in an area that is not subject to minimum monitoring requirements.

    Other comments received were outside the scope of this rule and not discussed in this preamble.

    IV. Conclusion and Final Action

    An analysis of available near-road NO2 monitoring data indicates that air quality levels in the near-road environment are well below the NO2 NAAQS. Based on the analysis of available concentration data, as well as related emissions, traffic, and network metadata, the EPA anticipates that measured near-road NO2 concentrations in relatively smaller CBSAs (i.e., CBSAs with populations less than 1,000,000 persons) would exhibit similar, and more likely, lower concentrations, than what is being measured at existing near-road NO2 sites in larger urban areas. In consideration of the data presented and reviewed in the proposal and the public comments received on the proposal, the EPA is finalizing, as proposed, the removal of monitoring requirements for near-road NO2 monitors in CBSAs having populations between 500,000 and 1,000,000 persons, also known as Phase 3 of the near-road NO2 network. The agency is also finalizing, as proposed, the removal of the requirement for a second near-road NO2 monitor in any CBSA having 500,000 or more persons that also had one or more road segments with 250,000 or greater AADT counts. The revised requirement for a second near-road NO2 monitor will only apply to CBSAs having 1,000,000 or more persons with a road segment of 250,000 or greater AADT counts.

    V. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and was, therefore, not submitted to the Office of Management and Budget (OMB) for review.

    B. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under the PRA. The final revisions do not add any information collection requirements beyond those imposed by the existing NO2 monitoring requirements.

    C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. In making this determination, the impact of concern is any significant adverse economic impact on small entities. An agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, has no net burden or otherwise has a positive economic effect on the small entities subject to the rule. This action will remove a sub-set of the current air monitoring requirements and, therefore, relieve state and local air monitoring agencies from having to provide evidence of compliance with the NO2 NAAQS in the near-road environment in CBSAs with less than 1,000,000 persons. We have, therefore, concluded that this action will relieve regulatory burden for all directly regulated small entities.

    D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain an unfunded mandate of $100 million or more as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action imposes no enforceable duty on any state, local or tribal governments or the private sector. This action will reduce the number of required near-road NO2 monitors to be operated by state and local air monitoring agencies.

    E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.

    F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

    This action does not have tribal implications, as specified in Executive Order 13175. This final rule imposes no requirements on tribal governments. Thus, Executive Order 13175 does not apply to this action.

    G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks

    The EPA interprets EO 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk.

    H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution or Use

    This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.

    I. National Technology Transfer and Advancement Act (NTTAA)

    This action does not involve technical standards.

    J. Executive Order 12898: Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations

    The EPA believes the human health or environmental risk addressed by this action will not have potential disproportionately high and adverse human health or environmental effects on minority, low-income or indigenous populations. The results of the network and data evaluation are contained in the Near-road NO2 Network and Data Analysis docket memo, which provides a review and analysis of the characteristics of the existing near-road NO2 monitoring network and the relationships between NO2 emissions, population, traffic, and NO2 concentration data. Further, this rule does not modify the existing requirements for near-road monitors required in CBSAs having 1,000,000 or more persons, area-wide NO2 monitors, or monitoring of NO2 in areas with susceptible and vulnerable populations.

    K. Congressional Review Act (CRA)

    This action is subject to the Congressional Review Act (CRA), and the EPA will submit a rule report to each House of Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

    List of Subjects in 40 CFR Part 58

    Environmental protection, Administrative practice and procedure, Air pollution control, Intergovernmental relations.

    Dated: December 22, 2016. Gina McCarthy, Administrator.

    For the reasons stated in the preamble, the Environmental Protection Agency is amending title 40, chapter I of the Code of Federal Regulations as follows:

    PART 58—AMBIENT AIR QUALITY SURVEILLANCE 1. The authority citation for part 58 continues to read as follows: Authority:

    42 U.S.C. 7403, 7405, 7410, 7414, 7601, 7611, 7614, and 7619.

    2. Amend § 58.10 by revising paragraph (a)(5)(iv) and removing paragraph (a)(5)(v) to read as follows:
    § 58.10 Annual monitoring network plan and periodic network assessment.

    (a) * * *

    (5) * * *

    (iv) A plan for establishing a second near-road NO2 monitor in any CBSA with a population of 2,500,000 persons or more, or a second monitor in any CBSA with a population of 1,000,000 or more persons that has one or more roadway segments with 250,000 or greater AADT counts, in accordance with the requirements of appendix D, section 4.3.2 to this part, shall be submitted as part of the Annual Monitoring Network Plan to the EPA Regional Administrator by July 1, 2014. The plan shall provide for these required monitors to be operational by January 1, 2015.

    3. Amend § 58.13 by revising paragraph (c)(4) and removing paragraph (c)(5) to read as follows:
    § 58.13 Monitoring network completion.

    (c) * * *

    (4) January 1, 2015, for a second near-road NO2 monitor in CBSAs that have a population of 2,500,000 or more persons or a second monitor in any CBSA with a population of 1,000,000 or more persons that has one or more roadway segments with 250,000 or greater AADT counts that is required in appendix D, section 4.3.2.

    4. Appendix D to part 58 is amended by revising section 4.3.2 to read as follows: Appendix D to Part 58—Network Design Criteria for Ambient Air Quality Monitoring 4.3.2 Requirement for Near-road NO2 Monitors

    (a) Within the NO2 network, there must be one microscale near-road NO2 monitoring station in each CBSA with a population of 1,000,000 or more persons to monitor a location of expected maximum hourly concentrations sited near a major road with high AADT counts as specified in paragraph 4.3.2(a)(1) of this appendix. An additional near-road NO2 monitoring station is required for any CBSA with a population of 2,500,000 persons or more, or in any CBSA with a population of 1,000,000 or more persons that has one or more roadway segments with 250,000 or greater AADT counts to monitor a second location of expected maximum hourly concentrations. CBSA populations shall be based on the latest available census figures.

    (1) The near-road NO2 monitoring sites shall be selected by ranking all road segments within a CBSA by AADT and then identifying a location or locations adjacent to those highest ranked road segments, considering fleet mix, roadway design, congestion patterns, terrain, and meteorology, where maximum hourly NO2 concentrations are expected to occur and siting criteria can be met in accordance with appendix E of this part. Where a state or local air monitoring agency identifies multiple acceptable candidate sites where maximum hourly NO2 concentrations are expected to occur, the monitoring agency shall consider the potential for population exposure in the criteria utilized to select the final site location. Where one CBSA is required to have two near-road NO2 monitoring stations, the sites shall be differentiated from each other by one or more of the following factors: fleet mix; congestion patterns; terrain; geographic area within the CBSA; or different route, interstate, or freeway designation.

    (b) Measurements at required near-road NO2 monitor sites utilizing chemiluminescence FRMs must include at a minimum: NO, NO2, and NOX.

    [FR Doc. 2016-31645 Filed 12-29-16; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 622 [Docket No. 160302174-6999-02] RIN 0648-BF81 Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Dolphin and Wahoo Fishery Off the Atlantic States; Regulatory Amendment 1 AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Final rule.

    SUMMARY:

    NMFS issues regulations to implement Regulatory Amendment 1 for the Fishery Management Plan for the Dolphin and Wahoo Fishery off the Atlantic States (FMP), as prepared and submitted by the South Atlantic Fishery Management Council (Council). This final rule establishes a commercial trip limit for Atlantic dolphin for vessels with a Federal commercial permit for Atlantic dolphin and wahoo. The purpose of this final rule is to reduce the chance of an in-season closure of the dolphin commercial sector as a result of the annual catch limit (ACL) being reached during the fishing year, and to reduce the severity of economic or social impacts caused by these closures.

    DATES:

    This rule is effective January 30, 2017.

    ADDRESSES:

    Electronic copies of Regulatory Amendment 1, which includes an environmental assessment, an assessment under the Regulatory Flexibility Act (RFA), a regulatory impact review, and fishery impact statement, may be obtained from www.regulations.gov or the Southeast Regional Office Web site at http://sero.nmfs.noaa.gov/sustainable_fisheries/s_atl/dw/2016/reg_am1/documents/pdfs/dw_reg_am1.pdf.

    FOR FURTHER INFORMATION CONTACT:

    Karla Gore, NMFS SERO, telephone: 727-551-5753, or email: [email protected]

    SUPPLEMENTARY INFORMATION:

    The dolphin and wahoo fishery of the Atlantic is managed under the FMP. The FMP was prepared by the Council and implemented through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Steven Act).

    On June 30, 2016, NMFS published a proposed rule for Regulatory Amendment 1 and requested public comment (81 FR 42625). The proposed rule and Regulatory Amendment 1 outline the rationale for the action contained in this final rule. A summary of the action implemented by Regulatory Amendment 1 and this final rule is provided below.

    Management Measure Contained in This Final Rule

    This final rule establishes a commercial trip limit for dolphin for vessels that have a Federal commercial permit for Atlantic dolphin and wahoo.

    Dolphin Commercial Trip Limit

    Currently, no commercial trip limit exists for vessels that possess a Federal commercial permit for Atlantic dolphin and wahoo. However, there is a commercial trip limit of 200 lb (91 kg) of dolphin and wahoo, combined, for vessels that do not have a Federal commercial permit for Atlantic dolphin and wahoo but do have a Federal commercial permit in any other fishery, provided that all fishing and landings from that trip occur north of 39° N. lat. (50 CFR 622.278(a)(2)). This final rule establishes a commercial trip limit of 4,000 lb (1,814 kg), round weight, for the dolphin commercial sector in the Atlantic, once 75 percent of the commercial ACL is reached. This trip limit remains in effect until the end of the fishing year or until the commercial ACL is met, whichever comes first. This trip limit applies to vessels that have a Federal commercial permit for Atlantic dolphin and wahoo, provided that the vessel is not operating as a charter vessel or headboat. There will be no applicable trip limit for the dolphin commercial sector in the Atlantic prior to 75 percent of the commercial ACL being reached. The Council determined that establishing this commercial trip limit would reduce the chance of early closures during the fishing year as a result of the accountability measures being triggered, and thereby reduce the severity of any economic or social impacts as a result of a commercial sector closure.

    Comments and Responses

    NMFS received four comments on the proposed rule and Regulatory Amendment 1. One comment was outside the scope of the amendment and two were in support of the amendment as proposed. Those comments are not addressed below. The remaining single commenter opposed the management actions in the proposed rule and Regulatory Amendment 1; summaries of and responses to the comments in opposition to the proposed rule and Regulatory Amendment 1 are below.

    Comment 1: The commercial trip limit selected in Regulatory Amendment 1 is not supported by the best available science, as mandated by the Magnuson-Stevens Act. No peer-reviewed stock assessment has ever been conducted for dolphin. Dolphin is the highest priority in the Council's list of species in need of a peer-reviewed stock assessment yet no Southeast Data, Assessment, and Review (SEDAR) assessment has been scheduled or requested. NMFS should conduct a stock assessment of dolphin in the Atlantic before implementing Regulatory Amendment 1.

    Response: NMFS disagrees that dolphin needs to be assessed before implementing this amendment and has certified that Regulatory Amendment 1 is based on the best scientific information available. Although dolphin is not currently scheduled for a stock assessment, it is a short-lived, highly productive species that is not considered to be vulnerable to overfishing. The decision to manage the fishery represented a precautionary and risk-averse approach to management. The Report to Congress on the Status of U.S. Fisheries indicates that dolphin is not overfished and is not undergoing overfishing. The Southeast Fisheries Science Center listed dolphin as a stock assessment priority; however, the Council did not include dolphin in its list of long-term priorities due to the need to revise assessments that had already been completed with updated data from the Marine Recreational Information Program. Thus, dolphin is not the highest priority of species in need of a peer-reviewed stock assessment and the Council and NMFS need not await a stock assessment to proceed with the Regulatory Amendment 1.

    Comment 2: The dolphin fishery is in need of management measures that will, when implemented, eliminate the need for commercial trip limits. NMFS should only implement Regulatory Amendment 1 as a temporary measure to give the Council and NMFS time to develop new management measures based on a new stock assessment. Therefore, a sunset date to the trip limit action should be included in Regulatory Amendment 1, to allow the commercial trip limits for the longline component of the commercial sector to be valid for a set number of years.

    Response: Regulatory Amendment 1 establishes a dolphin commercial trip limit of 4,000 lb (1,814 kg), round weight, once 75 percent of the commercial ACL is reached. The Council did not consider a sunset date for the action in this amendment. In the future, if deemed necessary, the Council could modify or remove the trip limit.

    Comment 3: The dolphin commercial trip limit will negatively impact commercial fishermen in the North Atlantic more significantly than fishermen in the Mid-Atlantic or South Atlantic as a result of dolphin's migratory patterns, in violation of National Standard 4. The fishing year should be changed from beginning on January 1 to begin on June 1 to allow the fishermen in the North Atlantic better access to the resource.

    Response: NMFS disagrees. The amendment does not violate National Standard 4 because it is intended to lengthen the fishing year for all commercial fishermen fishing in the Atlantic. The Council did not consider revising the fishing year in Regulatory Amendment 1. In the future, if deemed necessary, the Council could revise the fishing year.

    Comment 4: This amendment violates National Standard 9 and “no less than 4 U.N. resolutions and the UN FAO Code of Conduct for Responsible Fisheries” because the implementation of commercial trip limits will cause an increase in regulatory discards.

    Response: NMFS disagrees. Marine fisheries in the United States are scientifically monitored and regionally managed under a number of requirements, including the ten national standards in the Magnuson-Stevens Act. The National Standards are requirements that must be followed in any FMP to ensure sustainable and responsible fishery management. When reviewing FMPs, FMP amendments, and regulations, the Secretary of Commerce must ensure that they are consistent with the National Standards. National Standard 9 states: Conservation and management measures shall, to the extent practicable, (a) minimize bycatch and (b) to the extent bycatch cannot be avoided, minimize the mortality of such bycatch. The dolphin and wahoo fishery is managed under the FMP which is consistent with the National Standards. As discussed in the bycatch practicability assessment included in the Regulatory Amendment, the magnitude of discards in the dolphin and wahoo fishery is small, and bycatch is believed to be minimal in both the commercial and recreational sectors. Action was taken in the original FMP to reduce bycatch by prohibiting the use of surface and pelagic longline gear for dolphin and wahoo within any “time or area closure” closed to the use of pelagic gear for highly migratory pelagic species in the Council's area of jurisdiction. Although this action may increase the regulatory discards when the commercial trip limit is triggered, any increase is likely to be minimal.

    The commenter did not provide any information on, or citation to, the United Nations resolutions that it believes the rule violates, and thus NMFS cannot evaluate the comment that the rule is inconsistent with those resolutions. However, to the extent that those resolutions seek to minimize bycatch, this final rule is consistent with them. As explained above, although the final rule may increase regulatory discards when the rule is implemented, NMFS does not believe those increases in regulatory discards violate National Standard 9 or other efforts to minimize bycatch.

    In addition, with respect to the comment that the rule violates the United Nation's 1995 Code of Conduct for Responsible Fisheries (CCRF), NMFS disagrees. Similar to National Standard 9, the CCRF seeks to minimize bycatch. As explained above, the final rule is consistent with National Standard 9 and thus is consistent with other initiatives to minimize bycatch, including the CCRF.

    Comment 5: If trip limits are implemented, all forms of mortality, including regulatory discards, must be accounted for accurately in order to determine the effect of overall mortality on stock status. It is essential that NMFS collect data on discards of dolphin with the implementation of a commercial trip limit.

    Response: As described in the response to comment 4, the bycatch in the dolphin fishery is minimal. Information on dolphin landings and discards are collected through a variety of ways in the Atlantic. Commercial dolphin fishermen who are selected by the NMFS Science and Research Director are required to maintain and submit fishing records. Commercial dolphin fishermen are also required to submit logbooks with trip and effort information. Currently, discard data are collected using a supplemental form that is sent to a stratified random sample of 20 percent of the active Federal dolphin and wahoo commercial permit holders in the dolphin and wahoo fishery. For the recreational sector, estimates of the number of recreational discards are available from the Marine Recreational Information Program and the NMFS Southeast Headboat Survey.

    Additionally, the Council is currently developing the Bycatch Reporting Amendment to improve bycatch reporting in all of their managed fisheries. This amendment is intended to improve data collection on discards, including regulatory discards.

    Classification

    The Regional Administrator, Southeast Region, NMFS has determined that this final rule is necessary for the conservation and management of Atlantic dolphin and is consistent with Regulatory Amendment 1, the FMP, the Magnuson-Stevens Act, and other applicable law.

    This final rule has been determined to be not significant for purposes of Executive Order 12866.

    The Magnuson-Stevens Act provides the statutory basis for this rule. No duplicative, overlapping, or conflicting Federal rules have been identified. In addition, no new reporting, record-keeping, or other compliance requirements are introduced by this final rule.

    The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration (SBA) during the proposed rule stage that this rule would not have a significant economic impact on a substantial number of small entities. The factual basis for this determination was published in the proposed rule and is not repeated here. NMFS did not receive any comments from SBA's Office of Advocacy or the public on the certification in the proposed rule.

    On December 29, 2015, NMFS issued a final rule establishing a small business size standard of $11 million in annual gross receipts for all businesses primarily engaged in the commercial fishing industry (NAICS 11411) for RFA compliance purposes only (80 FR 81194, December 29, 2015). The $11 million standard became effective on July 1, 2016, and is to be used in place of the SBA's current standards of $20.5 million, $5.5 million, and $7.5 million for the finfish (NAICS 114111), shellfish (NAICS 114112), and other marine fishing (NAICS 114119) sectors of the U.S. commercial fishing industry in all NMFS rules subject to the RFA that are published after July 1, 2016. Id. at 81194.

    Pursuant to the RFA, and prior to July 1, 2016, a certification was developed for this regulatory action using SBA's size standards. NMFS has reviewed the analyses prepared for this regulatory action in light of the new size standard. All of the entities directly regulated by this regulatory action are finfish commercial fishing businesses and were considered small under the previously applicable SBA size standards. These commercial fishing businesses will not exceed the new threshold standard for small businesses, and thus they all will continue to be considered small under the new standard. Thus, NMFS has determined that the new size standard does not affect analyses prepared for this regulatory action.

    The Chief Counsel for Regulation of the Department of Commerce hereby reaffirms that the rule will not have a significant economic impact on a substantial number of small entities. Because this final rule, if implemented, will not have a significant economic impact on a substantial number of small entities, a final regulatory flexibility analysis is not required and none has been prepared.

    List of Subjects in 50 CFR Part 622

    Commercial, Dolphin, Fisheries, Fishing, Trip limits.

    Dated: December 22, 2016. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

    For the reasons stated in the preamble, NMFS amends 50 CFR part 622 as follows:

    PART 622—FISHERIES OF THE CARIBBEAN, GULF OF MEXICO, AND SOUTH ATLANTIC 1. The authority citation for part 622 continues to read as follows: Authority:

    16 U.S.C. 1801 et seq.

    2. In § 622.278, revise paragraph (a) to read as follows:
    § 622.278 Commercial trip limits.

    (a) Trip-limited permits—(1) Atlantic wahoo. (i) The trip limit for wahoo in or from the Atlantic EEZ is 500 lb (227 kg). This trip limit applies to a vessel that has a Federal commercial permit for Atlantic dolphin and wahoo, provided that the vessel is not operating as a charter vessel or headboat.

    (ii) See § 622.280(b)(1) for the limitations regarding wahoo after the ACL is reached.

    (2) The trip limit for a vessel that does not have a Federal commercial vessel permit for Atlantic dolphin and wahoo but has a Federal commercial vessel permit in any other fishery is 200 lb (91 kg) of dolphin and wahoo, combined, provided that all fishing on and landings from that trip are north of 39° N. lat. (A charter vessel/headboat permit is not a commercial vessel permit.)

    (3) Atlantic dolphin. (i) Once 75 percent of the ACL specified in § 622.280(a)(1)(i) is reached, the trip limit is 4,000 lb (1,814 kg), round weight. When the conditions in this paragraph (a)(3)(i) have been met, the Assistant Administrator will implement this trip limit by filing a notification with the Office of the Federal Register. This trip limit applies to a vessel that has a Federal commercial permit for Atlantic dolphin and wahoo, provided that the vessel is not operating as a charter vessel or headboat.

    (ii) See § 622.280(a)(1) for the limitations regarding dolphin after the ACL is reached.

    [FR Doc. 2016-31463 Filed 12-29-16; 8:45 am] BILLING CODE 3510-22-P
    81 251 Friday, December 30, 2016 Proposed Rules DEPARTMENT OF ENERGY Federal Energy Regulatory Commission 18 CFR Part 35 [Docket No. RM17-3-000] Fast-Start Pricing in Markets Operated by Regional Transmission Organizations and Independent System Operators AGENCY:

    Federal Energy Regulatory Commission, DOE.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    The Federal Energy Regulatory Commission is proposing to revise its regulations to require that each regional transmission organization and independent system operator incorporate market rules that meet certain requirements when pricing fast-start resources. These reforms should lead to prices that more transparently reflect the marginal cost of serving load, which will reduce uplift costs and thereby improve price signals to support efficient investments.

    DATES:

    Comments are due February 28, 2017.

    ADDRESSES:

    Comments, identified by docket number, may be filed in the following ways:

    • Electronic Filing through http://www.ferc.gov. Documents created electronically using word processing software should be filed in native applications or print-to-PDF format and not in a scanned format.

    • Mail/Hand Delivery: Those unable to file electronically may mail or hand-deliver comments to: Federal Energy Regulatory Commission, Secretary of the Commission, 888 First Street NE., Washington, DC 20426.

    Instructions: For detailed instructions on submitting comments and additional information on the rulemaking process, see the Comment Procedures Section of this document.
    FOR FURTHER INFORMATION CONTACT: Daniel Kheloussi (Technical Information), Office of Energy Policy and Innovation, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, (202) 502-6391, [email protected]. Eric Vandenberg (Technical Information), Office of Energy Market Regulation, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, (202) 502-6283, [email protected]. Kaleb Lockwood (Legal Information), Office of the General Counsel, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, (202) 502-8255, [email protected].
    SUPPLEMENTARY INFORMATION:

    Table of Contents

    Paragraph Numbers

    I. Background 5. II. Discussion 8. A. Current RTO/ISO Approaches to Fast-Start Pricing 11. B. Comments on Fast-Start Pricing 18. 1. Fast-Start Resource Definitions and Resource Eligibility 22. 2. Inclusion of Start-up and No-load Costs in Prices 23. 3. Relaxation of Economic Minimum Operating Limit 27. 4. Offline Fast-Start Resources 30. 5. Day-Ahead and Real-Time Market Consistency 33. C. Need for Reform of Fast-Start Pricing 34. D. Commission Proposal 44. 1. Fast-Start Resource Definitions and Resource Eligibility 46. 2. Inclusion of Start-up and No-load Costs in Prices 49. 3. Relaxation of Economic Minimum Operating Limit 54. 4. Offline Fast-Start Resources 56. 5. Day-Ahead and Real-Time Market Consistency 60. 6. Additional Comments Sought on This Proposal 64. III. Compliance 66. IV. Information Collection Statement 69. V. Environmental Analysis 73. VI. Regulatory Flexibility Act 74. VII. Comment Procedures 77. VIII. Document Availability 81.

    1. In this Notice of Proposed Rulemaking (NOPR), the Federal Energy Regulatory Commission (Commission) is proposing to address the pricing of energy from resources that are able to start quickly (i.e., any resource that is able to start up within ten minutes or less, that has a minimum run time of one hour or less, and that submitted an economic energy offer to the market) (fast-start resources). In this context, fast-start pricing addresses the software algorithms by which a regional transmission organization (RTO) or independent system operator (ISO) incorporates the offers of fast-start resources into the market prices for energy and ancillary services.1

    1 In the November 20, 2015 Order Directing Reports issued in Docket No. AD14-14-000, the Commission noted that inflexible resources “are generally referred to as block-loaded fast-start resources.” Price Formation in Energy and Ancillary Services Markets Operated by Regional Transmission Organizations and Independent System Operators, 153 FERC ¶ 61,221, at P 9 (2015) (Order Directing Reports). The Commission also stated that

    [a]n inflexible resource generally refers to a resource that may not be able to physically operate much below its maximum output and therefore cannot be dispatched up or down. For this reason, the energy supply offer parameters for these resources may stipulate that they be dispatched either to zero or to a minimum level that is at (or close to) their maximum output, but not in between.

    Id. P 9 n.8. The Commission further noted that “[a] block-loaded resource is a resource whose economic minimum operating limit is equal to its economic maximum output.” Id. P 9 n.9. While this NOPR seeks to address issues discussed in the Order Directing Reports and the subsequent reports and comments submitted in that docket, we do not limit terms used in this NOPR to the definitions provided in the Order Directing Reports.

    2. Varied approaches exist among RTOs and ISOs to incorporate fast-start resources into energy and ancillary services prices (fast-start pricing). Fast-start resources are unique because they are often dispatched to their inflexible minimum or maximum operating limits, and are thus not eligible to set the locational marginal price (LMP).2 In addition, fast-start resources are typically committed in real-time, very close to the interval when they are needed. As a result, the cost to commit these resources is incurred at roughly the same time the incremental energy costs are incurred, which raises the question of whether the commitment costs should be included in the LMP. Finally, fast-start resources can arguably respond quickly enough to be considered part of an RTO's/ISO's operating reserves even when they have not yet been committed. As a result of these unique characteristics, RTOs/ISOs have developed pricing specific to this class of resources. This pricing is designed generally to recognize that fast-start resources are, for all intents and purposes, the marginal resource used to meet the next increment of energy or operating reserves demand. Based on experience with the different fast-start pricing used by each RTO/ISO, we believe some practices have emerged over time that better represent the marginal cost of serving load.

    2 At a high level, the LMP is set by the offer of the resource that is dispatched up to serve the next additional MW of demand or dispatched down to accommodate the next MW of reduced demand. Fast-start resources often have little or no dispatch range (i.e., their economic minimum operating limit equals their economic maximum operating limit). A resource that is operating inflexibly at its economic minimum operating limit or maximum operating limit is not dispatchable to serve an additional increment or decrement of load, and is thus not eligible to set the LMP.

    3. We preliminarily find that some of these approaches may not result in rates that are just and reasonable for several reasons. We are concerned that some existing practices may not ensure that prices accurately reflect the marginal cost of serving load, potentially resulting in prices that do not reflect the value of fast-start resources, potentially creating unnecessary uplift payments, and potentially failing to provide incentives for market participants to make efficient investments. As a result, we propose to require that each RTO/ISO incorporate the following five requirements for its fast-start pricing. First, an RTO/ISO must apply fast-start pricing to any resource committed by the RTO/ISO that is able to start up within ten minutes or less, has a minimum run time of one hour or less, and that submits economic energy offers to the market. Second, when an RTO/ISO makes a decision to commit a fast-start resource, it should incorporate commitment costs, i.e., start-up and no-load costs, of fast-start resources in energy and operating reserve prices, but must do so only during the fast-start resource's minimum run time. Third, an RTO/ISO must modify its fast-start pricing to relax the economic minimum operating limit of fast-start resources and treat them as dispatchable from zero to the economic maximum operating limit for the purpose of calculating prices. Fourth, if an RTO/ISO allows offline fast-start resources to set prices for addressing certain system needs, the resource must be feasible and economic. Finally, an RTO/ISO must incorporate fast-start pricing in both the day-ahead and real-time markets.

    4. We seek comment on these proposed reforms 60 days after publication of this NOPR in the Federal Register.

    I. Background

    5. In June 2014, the Commission initiated a proceeding, in Docket No. AD14-14-000, Price Formation in Energy and Ancillary Services Markets Operated by Regional Transmission Organizations and Independent System Operators, to evaluate issues regarding price formation in the energy and ancillary services markets operated by RTOs/ISOs (Price Formation Proceeding). The notice initiating that proceeding stated that there may be opportunities for the RTOs/ISOs to improve the price formation process in the energy and ancillary services markets. As set forth in the notice, prices used in energy and ancillary services markets ideally “would reflect the true marginal cost of production, taking into account all physical system constraints, and these prices would fully compensate all resources for the variable cost of providing service.” 3 Pursuant to the notice, staff conducted outreach and convened technical workshops on the following four general issues: (1) use of uplift payments; (2) offer price mitigation and offer price caps; (3) scarcity and shortage pricing; and (4) operator actions that affect prices.4

    3 Price Formation in Energy and Ancillary Services Markets Operated by Transmission Organizations and Independent System Operators, Notice, Docket No. AD14-14-000, at 2 (June 19, 2014).

    4Id. at 1, 3-4.

    6. In January 2015, the Commission requested comments on questions that arose from the price formation technical workshops.5 As a result of these comments, the Commission identified, among other things, five technical topics with potential for reform to improve price formation, but for which further information was needed. In November 2015, the Commission issued an order that directed each RTO/ISO to report on these five price formation topics: fast-start pricing; managing multiple contingencies; look-ahead modeling; uplift allocation; and transparency.6 The order directed each RTO/ISO to file a report providing an update on its current practices in the topic areas, outlining the status of its efforts (if any) to address issues in each of the five topics, and responding to specific questions contained in the order. This NOPR addresses the pricing of fast-start resources.

    5 Notice Inviting Post-Technical Workshop Comments, Docket No. AD14-14-000 (Jan. 16, 2015).

    6 Order Directing Reports, 153 FERC ¶ 61,221).

    7. In the reports filed and the subsequent comments, RTOs/ISOs and other commenters addressed the issue of fast-start pricing, as discussed below.7

    7 A list of commenters and the abbreviated names used in this NOPR appears in the Appendix.

    II. Discussion

    8. In RTOs/ISOs, LMPs reflect the system marginal cost of serving the next increment of load, taking into account transmission constraints and line losses. With certain exceptions, only resources that are dispatchable, i.e., those that can be dispatched up or down in response to changes in system conditions, are eligible to set prices.8 In many situations, this eligibility requirement ensures that LMPs reflect the marginal cost of serving the next increment of demand. However, this eligibility requirement can distort LMPs when a fast-start resource is committed and dispatched to serve expected load during a particular interval. This restriction often prevents a fast-start resource from setting prices when the resource is dispatched at its economic minimum operating limit. Fast-start resources are often required to be dispatched at their economic minimum operating limit or are block-loaded.9 Because the system may need fewer megawatts (MW) than the fast-start resource's economic minimum operating limit to meet load, other resources must be dispatched down. The resources that were dispatched down become the most economic option to serve the next increment of load. Therefore, despite the fact that a fast-start resource is essentially marginal, this restriction prevents a fast-start resource dispatched at its economic minimum operating limit from setting the LMP. To allow fast-start resources to set prices so that LMPs better reflect the marginal cost of serving load, some RTOs/ISOs modify the market rules and software. Typically, they treat fast-start resources as dispatchable in a pricing algorithm (i.e., pricing run) separate from the dispatch algorithm (i.e., dispatch run). While the dispatch run meets all of the physical constraints of the resources, the pricing run relaxes the economic minimum operating limit of a fast-start resource so that the resource is treated as dispatchable by the market-clearing software and eligible to set prices.

    8 Order Directing Reports, 153 FERC ¶ 61,221 at P 9.

    9 Block-loaded means the resource's economic minimum operating limit equals its economic maximum operating limit. The economic minimum and maximum operating limits are the minimum amount of electric power that a resource must be allowed to produce, and the highest level a resource can produce, while under economic dispatch, respectively.

    9. Fast-start pricing can result in improved price signals, especially during tight or unexpected system conditions when the need for fast-start resources is the greatest. However, fast-start pricing can create a disconnect between prices and dispatch instructions, which can lead to over-generation. Specifically, fast-start pricing requires the pricing run to assume that fast-start resources can operate below the resources' economic minimum operating limit such that the pricing run also dispatches other units at levels greater than the level instructed by the dispatch run. Many RTOs/ISOs ensure that the disconnect in resource output levels between the pricing and dispatch runs are reconciled to avoid over-generation; however, some RTOs/ISOs do not reconcile the differences, leading to dispatch targets that produce energy in excess of what is needed to serve load, i.e., over-generation. Further, generation resources that are dispatched downward to accommodate the commitment of fast-start resources may have incentives to produce energy above their dispatch targets to capture the higher prices set by fast-start resources, leading to over-generation. Thus, fast-start pricing rules are typically paired with market rules to reduce the incentives for producing energy above dispatch targets.

    10. Further, reflecting commitment costs in LMPs requires some judgment regarding how and when to include those commitment costs. Similarly, reflecting the costs of offline resources in LMPs requires some judgment regarding when these resources are actually economically and technically able to address a reserve shortage or transmission constraint.

    A. Current RTO/ISO Approaches to Fast-Start Pricing

    11. Each RTO/ISO has developed its own unique pricing to accommodate the specific characteristics of fast-start resources in its respective market.

    12. CAISO defines fast-start resources as those that can come online in under two hours and can be committed in CAISO's fifteen-minute market or the short-term unit commitment process. CAISO states that there is no special treatment for the commitment or pricing of generating units related to whether they are fast, medium, or long start.10 However, CAISO applies special modeling logic to certain block-loaded or nearly block-

    10 Report of CAISO, Docket No. AD14-14-000, at 4 (Mar. 4, 2016) (CAISO Report).

    loaded resources known as Constrained Output Generators.11 CAISO currently allows minimum load costs to affect LMPs but does not include start-up costs.12 In the day-ahead market, Constrained Output Generators are treated as dispatchable resources in both the scheduling and pricing run; thus, in the day-ahead market, Constrained Output Generators can set prices. In the real-time market, the scheduling run does not allow Constrained Output Generators to be dispatched below their economic minimum operating limit, but in the pricing run the economic minimum operating limit is relaxed to zero. CAISO does not allow offline resources to set LMP.13 CAISO states that because so few resources have registered as Constrained Output Generators, it has no anecdotal data that its Constrained Output Generator-related pricing logic results in over-generation issues. However, CAISO notes that over-generation could be a concern if a large number of resources were to register as Constrained Output Generators.14 CAISO states that it is not currently working on any stakeholder initiatives to modify commitment or pricing logic related to fast-start units, but notes that some of its stakeholders have argued for an extended pricing mechanism similar to MISO's Extended LMP mechanism.15

    11 CAISO defines a Constrained Output Generator as any generating unit with an operating range that is no greater than the highest of three MW or five percent of its maximum operating range. Id. at 1-2. Block-loaded resources in CAISO are required to register as Constrained Output Generators, while certain nearly-block loaded resources are permitted to register as Constrained Output Generators, if desired. CAISO notes that there are currently no resources registered as Constrained Output Generators. Id. at 11.

    12Id. at 2. In CAISO, a Constrained Output Generator's calculated energy bid (which is the unit's minimum load costs divided by the MW quantity of the unit's maximum output) can set the LMP.

    13Id. at 10.

    14Id. at 8. Fast-start pricing could result in over-generation (i.e., producing energy in excess of what is needed to serve load) due to several factors. First, price signals generated by fast-start pricing could incent some resources to produce energy above their dispatch targets. Specifically, if LMP is higher than a resource's incremental energy offer, that resource would have an incentive to increase its profits by generating above energy dispatch targets, leading to over-generation. Second, an RTO/ISO may use a scheduling run that incorporates relaxed economic minimum operating limits and does not require that generation be equal to load, resulting in over-generation. See PJM Report on Price Formation Issues, Docket No. AD14-14-000, at 12-13 (Feb. 17, 2016) (PJM Report).

    15 CAISO Report at 8-9.

    13. ISO-NE recently proposed revisions to its process for dispatching and pricing fast-start units, which will become effective March 31, 2017.16 ISO-NE defines fast-start resources as those with start-up times of thirty minutes or less and which have a minimum run time of one hour or less and a minimum down time of one hour or less.17 ISO-NE states that its pricing mechanism will allow start-up and no-load costs to be included in LMPs. ISO-NE will have separate dispatch and pricing runs, with the pricing run following the dispatch run, where economic minimum operating limits are relaxed.18

    16ISO New England Inc. and New England Power Pool Participants Committee, Docket No. ER15-2716-000 (Oct. 19, 2015) (delegated letter order).

    17 Report of ISO-NE., Docket No. AD14-14-000, at 6 (Mar. 4, 2016) (ISO-NE Report).

    18Id. at 16.

    However, ISO-NE does not allow offline resources to set the LMP.19 ISO-NE states that its revised fast-start pricing is being implemented in the real-time market only.20 ISO-NE argues that its revised fast-start pricing logic will eliminate over-generation issues and states that it will compensate certain re-dispatched resources for their opportunity costs.21

    19Id. at 10.

    20Id. at 3.

    21Id. at 14-15.

    14. MISO's fast-start pricing logic, referred to as Extended LMP (ELMP), became effective in 2015.22 MISO defines a fast-start generating resource as a generating unit with a start-up time of ten minutes or less and a minimum run time of one hour or less.23 MISO allows a fast-start resource's start-up and no-load costs to affect the LMP. MISO also allows an offline fast-start resource to set LMPs but only under reserve or transmission scarcity conditions.24 MISO's ELMP is applied to both day-ahead and real-time markets in order to facilitate price convergence between the two markets.25 MISO states that, though it recognizes that fast-start pricing can result in over-generation, it has not observed any significant over-generation issues. However, MISO emphasizes that its settlement rules incentivize following dispatch instructions because it penalizes resources that deviate.26 MISO states that it is currently planning to implement ELMP Phase II, which it states will expand upon Phase I principles by applying fast-start pricing to more peaking resources.27

    22Midcontinent Indep. Sys. Operator, Inc., 150 FERC ¶ 61,143 (2015).

    23 Report of MISO, Docket No. AD14-14-000, at 9 (Mar. 4, 2016) (MISO Report).

    24Id. at 11.

    25Id. at 8.

    26Id. at 15.

    27Id. at 7.

    15. NYISO does not apply fast-start pricing to all fast-start resources. Instead, NYISO applies special pricing logic, referred to as “hybrid gas turbine pricing logic,” to all committed block-loaded resources qualified to provide 10-minute non-synchronous reserves. This pricing logic allows block-loaded gas turbines to set prices.28 Under this logic, start-up and no-load costs are not reflected in LMP. In the day-ahead market, all resources are modeled as dispatchable in the pricing pass of the Security Constrained Unit Commitment process, but NYISO states that this process does not employ the same fast-start pricing as is used in real-time.29 NYISO explains that, in the real-time market, its hybrid gas turbine pricing logic allows block-loaded resources to be modeled as fully dispatchable to determine prices.30 NYISO applies fast-start pricing during a fast-start resource's minimum run time if it is economic.31 NYISO also allows offline fast-start resources to set prices and allows start-up costs for those resources to be reflected in the price.32 NYISO states that it will be working with stakeholders during 2016 to allow all block-loaded units economically committed by the real-time commitment software to set prices.33

    28 Corrected Report of NYISO, Docket No. AD14-14-000, at 9 (Mar. 23, 2016) (NYISO Report).

    29Id. at 15.

    30Id. at 3.

    31Id. at 4.

    32Id. at 6, 10.

    33Id. at 3, 8.

    16. PJM's tariff and other governing documents do not include formal definitions for fast-start or block-loaded resources. For the purposes of its report, PJM describes a fast-start resource as a combustion turbine that can start within two hours and a block-loaded resource as one with an economic minimum operating limit equal to its economic maximum operating limit. In practice, PJM allows block-loaded resources to set prices.34 PJM's pricing logic does not allow block-loaded resources' start-up or no-load costs to be included in prices. PJM states that in the day-ahead market, the pricing and dispatch runs are combined, while in the real-time market, the pricing run executes first, followed by the dispatch run.35 PJM states that in both the day-ahead and real-time markets, it relaxes the economic minimum operating level of block-loaded resources up to ten percent.36 However, PJM does not allow offline resources to set prices.37 PJM explains that it allows resources with a limited operating range, other than block-loaded resources, to set prices when operating to control a specific transmission constraint.38 PJM states that it is not currently working on any stakeholder initiatives regarding fast-start unit pricing.39

    34 PJM Report at 2.

    35Id. at 5.

    36Id. at 5.

    37Id. at 10-11.

    38Id. at 14-15.

    39Id. at 9.

    17. SPP has special pricing logic that it applies to what it refers to as quick-start resources. SPP defines a quick-start resource as a resource that (1) is registered as a quick-start resource; (2) has a cold start-up time of ten minutes or less; (3) has a minimum run time of one hour or less; and (4) has a total minimum down time of one hour or less.40 SPP does not allow start-up or no-load costs to affect LMP directly, but does allow quick-start resources to include start-up and no-load costs in their mitigated energy offer curves for the purpose of unit commitment.41 SPP's production run determines both dispatch and pricing for all resources but resources constrained by their economic minimum or maximum operating limits are not eligible to set LMP.42 Specifically, SPP states that it relaxes the economic minimum operating limit of quick-start resources to zero in a screening run that is executed prior to the final production run, which includes both dispatch and pricing. SPP explains that if the quick-start resource is dispatched below its economic minimum operating limit in the screening run, it will be considered offline in the final production run. Conversely, SPP states that if the quick-start resource is committed at or above its economic minimum operating limit, it will be considered online in the final production run.43 Additionally, SPP does not allow offline quick-start resources to set LMP.44 SPP reports that it intends to implement new fast-start pricing to commit quick-start resources more efficiently in real-time in the second quarter of 2017.45

    40 Report of SPP on Price Formation Issues, Docket No. AD14-14-000, at 1-2 (Mar. 7, 2016) (SPP Report).

    41Id. at 5, 8, 10.

    42Id. at 2-3.

    43Id. at 2-3.

    44Id. at 8-9.

    45Id. at 4-5.

    B. Comments on Fast-Start Pricing

    18. Multiple commenters support the use of fast-start pricing methods that allow resources dispatched at their operating limits to set LMP and allow start-up and no-load costs to affect prices.46 EPSA/WPTF 47 argues that such fast-start pricing methods could improve pricing signals and help correct CAISO's “duck curve problem” by redistributing excess costs incurred during the middle of the day to the ramping periods.48 Similarly, Exelon believes that RTOs/ISOs should ensure that start-up and no-load costs of resources dispatched at operational limits can affect prices by using a particular mathematical technique called “convex hull pricing,” which would better reflect the cost of electricity, reduce uplift, and enhance incentives for all resources to perform.49

    46 DC Energy, Inertia Power, and Vitol Comments at 8; EPSA Comments at 11; EPSA/IPPNY Comments at 6; EPSA/P3 Comments at 5; EPSA/WPTF Comments at 4-5; Exelon Comments at 7-8; PSEG Companies Comments at 8.

    47 EPSA filed multiple sets of comments paired with different groups as well as its own stand-alone comments.

    48 EPSA/WPTF Comments at 4-5.

    49 Exelon Comments at 6-7. Commenters frequently refer to a certain pricing methodology known as “convex hull pricing.” This methodology allows the start-up and no-load costs of resources to affect prices by using a particular mathematical technique.

    19. Commenters identified a number of best practices across the RTOs/ISOs. Entergy, EPSA, and Westar generally support certain aspects of MISO's ELMP. EPSA believes that MISO's ELMP approach yields favorable results by ensuring that generators follow dispatch signals and that generators' minimum operating limits are satisfied in dispatch.50 EPSA states that several components of MISO's ELMP can be widely adopted across all RTO/ISO pricing mechanisms.51 Further, EPSA and PSEG Companies believe the approaches used by MISO and ISO-NE to relax the economic minimum limits represent a best practice.52 Further, PSEG Companies states that ISO-NE's revised fast-start pricing method addresses over-generation concerns by paying lost opportunity payments to those resources that follow dispatch instructions but are subsequently re-dispatched down to their economic set point.53 In addition, EPSA and EPSA/IPPNY are generally supportive of NYISO's fast-start pricing methods.54

    50 EPSA Comments (on MISO Report) at 12.

    51Id. at 6; EPSA Comments (on price formation) at 12-13.

    52 EPSA Comments (on MISO Report) at 6; PSEG Companies Comments at 4.

    53 PSEG Companies Comments at 7.

    54 EPSA Comments (on SPP Report) at 7; EPSA/IPPNY Comments at 5-6.

    20. On the other hand, EPSA and Golden Spread express concern that the fast-start pricing methods employed by SPP are insufficient.55 Specifically, Golden Spread states that certain aspects of SPP's market design features and operator practices result in inefficient market prices and fail to reflect the costs to start and operate fast-start resources or the value they provide to the system.56

    55 EPSA Comments (on SPP Report) at 5; Golden Spread Comments at 1-2.

    56 Golden Spread Comments at 1-2.

    21. In contrast, the PJM Market Monitor argues that relaxing economic minimum limits for price setting artificially overrides fundamental pricing logic in order to reduce uplift. The PJM Market Monitor argues that this can result in an increase in total production costs.57 Specifically, the PJM Market Monitor opposes PJM's practice of reducing the economic minimum limit of certain resources to change LMPs. The PJM Market Monitor argues that this pricing logic is a form of subjective pricing because it varies from fundamental LMP logic based on an administrative decision to reduce uplift.58

    57 PJM Market Monitor Comments at 2-3.

    58Id. at 2.

    1. Fast-Start Resource Definitions and Resource Eligibility

    22. Commenters generally support applying enhanced technology-neutral fast-start pricing logic to an expanded set of resources. Exelon and IMG Midstream/Tangibl recommend that the definition of fast-start resources be technology agnostic.59 EPSA and Entergy support expanding MISO's ELMP pricing to include units that can respond within thirty minutes and to include more emergency demand response resources.60 EPSA/NEPGA also supports prioritizing fast-start demand response resource pricing.61 IMG Midstream/Tangibl states that PJM's and CAISO's definitions of fast-start resources do not coincide with the definition used by other RTOs/ISOs, which define fast-start resources as being able to start up within ten minutes, rather than two hours as defined by PJM and CAISO. Further, IMG Midstream/Tangibl argues that PJM's definition inappropriately rewards less flexible resources.62 IMG Midstream/Tangibl recommends that the Commission direct PJM and CAISO to define stricter start-up time requirements for fast-start resources, or create two different classes for these resources to better

    59 Exelon Comments at 13; IMG Midstream/Tangibl Comments 4-5.

    60 EPSA Comments (on MISO Report) at 10; EPSA Comments (on price formation) at 13; Entergy Comments at 7.

    61 EPSA/NEPGA Comments at 6-7.

    62 IMG Midstream/Tangibl Comments at 2-4, 6-8.

    differentiate those that are truly fast-start from those that are not.63 With respect to CAISO's Constrained Output Generator commitment process, EPSA/WPTF points out that not all fast-start resources are registered or would qualify for this process.64

    63Id. at 4-5. However, CAISO states that regardless of whether a unit is classified as fast, medium, or long start, there is no special treatment for the commitment or pricing of that unit. CAISO Report at 4.

    64 EPSA/WPTF Comments at 5.

    2. Inclusion of Start-Up and No-Load Costs in Prices

    23. Multiple commenters believe that the start-up and no-load costs of fast-start resources should be allowed to affect LMPs, particularly when a unit is within its minimum run time.65 According to EEI, including start-up and no-load costs in appropriate markets could minimize uplift and result in more complete and accurate price signals for market participants.66 DC Energy, Inertia Power, and Vitol note that both ISO-NE and MISO use reasonable methods of amortizing a fast-start resource's start-up costs over its minimum run time, and that resource's no-load costs over its actual run time, which appropriately includes these costs in prices.67

    65 DC Energy, Inertia Power, and Vitol Comments at 8-9; EEI Comments at 3; EPSA/P3 Comments at 5-6; Exelon Comments at 9-10; IMG Midstream/Tangibl Comments at 8-9; PSEG Companies Comments at 9. Exelon also states that PJM's concern that resources will chase prices if start-up and no-load costs are included in price should be resolved by imposing a penalty to resources that deviate from dispatch instructions. Exelon Comments at 12.

    66 EEI Comments at 3-4.

    67 DC Energy, Inertia Power, and Vitol Comments at 9.

    24. EPSA/IPPNY urges the Commission to direct NYISO to review whether the start-up and no-load costs of fast-start resources should be allowed to affect LMPs and supports NYISO's current efforts in this regard.68 Similarly, Golden Spread, Westar, and EPSA believe that SPP should incorporate the start-up and no-load costs of fast-start resources into the LMP 69 in order to reduce uplift and prevent price suppression.70

    68 EPSA/IPPNY Comments at 6.

    69 As noted previously, SPP determines a unit's offer curve by combining start-up and no-load adders with the unit's energy offer curve. However, only the energy component is used to set LMP. SPP Report at 8.

    70 EPSA Comments (on SPP Report) at 8; Golden Spread Comments at 1-2; Westar Comments at 3-4.

    25. Conversely, the PJM Market Monitor states that PJM appropriately explains in its report the likely negative impacts of including start-up and no-load costs in PJM's price-setting logic.71 PJM argues that to account for start-up costs in LMP would involve assumptions regarding the run time of a fast-start resource in order to amortize these costs over that period. PJM contends that assumptions regarding actual run time would introduce uncertainty and error in LMP calculations and cause potential divergence between the dispatch instructions given to a resource and the LMP at the resource's location.72 In addition, PJM explains that incorporating no-load costs into the calculation of LMP would represent a significant change to the status quo and produce negligible benefits. PJM asserts that such a change would introduce a divergence between LMPs and dispatch signals for all resources.73

    71 PJM Market Monitor Comments at 1.

    72 PJM Report at 10.

    73Id. at 10.

    26. CAISO asserts that LMPs are intended to reflect the incremental cost of serving load, which does not include commitment costs, but states that the logic by which the no-load costs of block-loaded Constrained Output Generators are included in LMPs could be extended to other resources with a limited operating range.74

    74 CAISO Report at 12.

    3. Relaxation of Economic Minimum Operating Limit

    27. Several commenters argue that the economic minimum operating limit of block-loaded or fast-start resources should be relaxed to zero when determining prices. EPSA, EPSA/P3, Exelon, and PSEG Companies argue that PJM's practice of relaxing the economic minimum operating limit by at most ten percent limits the ability for block-loaded resources to set LMPs whenever they are required to meet load and prevents a full consideration of a block-loaded resource's costs.75 PSEG Companies requests that the Commission find that relaxing a block-loaded fast-start resource's minimum operating limit to zero (i.e., relaxing the minimum operating limit by 100 percent) is the best practice because it ensures that block-loaded resources can set the price whenever they are needed.76 PJM argues that because it limits the relaxation of the economic minimum operating limit by at most ten percent, over-generation is kept to a minimum and any imbalances are managed by existing grid services.77

    75 EPSA Comments (on MISO Report) at 6; EPSA/P3 Comments at 6; Exelon Comments at 12; PSEG Companies Comments at 4-5.

    76 PSEG Companies Comments at 7.

    77 PJM Report at 12.

    28. EPSA encourages the Commission to direct all RTOs/ISOs to incorporate the principles exemplified by MISO's ELMP pricing logic, which it believes relaxes economic minimum operating limits in a pricing run that occurs after the dispatch run, and appears to have resulted in robust dispatch operations and not resulted in significant over-generation. EPSA states that such logic will help adequately compensate resources for their distinct capabilities through LMPs and lead to efficient and orderly dispatch.78

    78 EPSA Comments (on MISO Report) at 12-13.

    29. NYISO states that it allows block-loaded resources to be considered as fully dispatchable from zero to their upper limit when determining prices so that these resources can set the price whenever they are needed to meet load.79 NYISO argues that not treating such resources as fully dispatchable could prevent these resources from setting prices, especially in load pockets within New York where only block-loaded resources are available to meet reliability needs.80

    79 NYISO Report at 5.

    80Id. at 5.

    4. Offline Fast-Start Resources

    30. Several commenters express concern that allowing offline resources to set prices when they are not actually capable of resolving a transmission or reserve shortage could lead to inaccurate price signals.81 Specifically, Entergy, EPSA, and Westar express concern that MISO is over-including offline resources in price setting even when they are not available to serve an increase in demand.82 Westar further states that the use of offline unit costs can inappropriately prevent scarcity price signals, prevent online resources with higher costs from setting the price, lead to increased uplift, and result in prices that do not represent the true marginal cost of production.83 To remedy this issue, EPSA argues that MISO must make significant improvements to its dispatch modeling and pricing processes in order to allow offline resources to set prices only when these resources are both economic and available.84 MISO states that it allows offline fast-start resources to set LMP, but has, per guidance from its market monitor, revised its commitment methodology to better reflect unit economics and availability.85

    81 Entergy Comments at 7; EPSA Comments (on MISO Report) at 6-8; Exelon Comments at 13; Westar Comments at 4-5.

    82 Entergy Comments at 7; EPSA Comments (on MISO Report) at 6-8; Westar Comments at 4-5.

    83 Westar Comments at 4-5.

    84 EPSA Comments (on MISO Report) at 6.

    85 MISO Report at 11-14.

    31. CAISO does not believe that allowing offline resources to contribute to LMP would lead to the most economical market solution.86 CAISO explains that it clears its markets using classical unit commitment methodologies where the objective is to minimize the overall system costs, including the commitment costs. Under this approach, CAISO states that offline resources would not be committed in CAISO markets because they are considered to not lead to the most economical solution. PJM and ISO-NE argue that, since LMP is based on the cost of the next incremental unit of energy at that moment in time and an offline resource cannot provide that next incremental unit of energy, offline resources should not be eligible to set prices.87

    86 CAISO Report at 10.

    87 PJM Report at 11; ISO-NE Report at 10.

    32. With respect to NYISO's treatment of offline resources, LIPA states that NYISO's model reflects the availability of offline units in LMPs while not accurately representing the actual flexibility of the system. LIPA explains that this leads to inefficient pricing and system dispatch, as well as excessive start-ups of offline units.88

    88 LIPA Comments at 4.

    5. Day-Ahead and Real-Time Market Consistency

    33. Commenters also generally support the use of fast-start pricing in both the day-ahead and real-time markets. Some commenters contend that RTOs/ISOs should use consistent fast-start pricing for both day-ahead and real-time models to encourage price convergence, regardless of how infrequently fast-start units are committed in the day-ahead market.89 Entergy supports MISO's past efforts to implement ELMP as a day-ahead and real-time market platform such that LMP reflects the true marginal cost of production.90 PJM states that its fast-start pricing logic is applied to both markets in order to reflect the costs of resources operated to address transmission constraints in both day-ahead and real-time LMPs.91 On the other hand, ISO-NE states that its revised fast-start pricing is being implemented in the real-time market only.92 ISO-NE explains that implementation in the day-ahead market would have a smaller beneficial impact given that most fast-start resources do not clear in the day-ahead market. ISO-NE states that this is especially true with respect to fossil fuel fast-start resources, which have inherently high operating costs and primarily operate in response to unanticipated real-time system conditions.93

    89 DC Energy, Inertia Power, and Vitol Comments at 9-10.

    90 Entergy Comments at 7.

    91 PJM Report at 13.

    92 ISO-NE Report at 16-17.

    93 ISO-NE Report at 16.

    C. Need for Reform of Fast-Start Pricing

    34. We preliminarily find that RTOs'/ISOs' existing practices regarding the pricing of fast-start resources may result in rates that are unjust and unreasonable.

    35. The Commission has stated that the goals of price formation are to: (1) Maximize market surplus for consumers and suppliers; (2) provide correct incentives for market participants to follow commitment and dispatch instructions, make efficient investments in facilities and equipment, and maintain reliability; (3) provide transparency so that market participants understand how prices reflect the actual marginal cost of serving load and the operational constraints of reliably operating the system; and (4) ensure that all suppliers have an opportunity to recover their costs.94 The accurate pricing of fast-start resources can advance price formation goals by more transparently reflecting the marginal cost of serving load, which will reduce uplift costs and thereby improve price signals to support efficient investments in facilities and equipment.

    94See Notice Inviting Post-Technical Workshop Comments, Docket No. AD14-14-000 at 2 Price Formation in Energy and Ancillary Services Market Operated by Transmission Organizations and Independent System Operators, Notice, Docket No. AD14-14-000.

    36. While most RTOs/ISOs have incorporated some form of fast-start pricing into their market-clearing software, based on experience with the different fast-start pricing used by each RTO/ISO, we believe some practices have emerged that better represent the marginal cost of serving load. Specifically, we believe that some existing fast-start pricing practices, or a lack of fast-start pricing practices, may result in market prices that fail to accurately reflect the marginal cost of serving load. These prices may fail to reflect the value of fast-start resources and create unnecessary uplift payments.

    37. For the reasons outlined below, we preliminarily find that such market outcomes may produce rates that are unjust and unreasonable. First, we preliminarily find that some current RTO/ISO practices may fail to accurately reflect the marginal cost of serving load because fast-start resources are inappropriately prevented from setting prices.95 Fast-start resources are often dispatched to meet real-time system needs but are often ineligible to set the clearing price because these resources are either dispatched at an economic minimum operating limit or are block-loaded. This is the case because LMP is set by the offer of the resource that is dispatched up to serve the next additional MW of demand or dispatched down to accommodate the next MW of reduced demand. Fast-start resources often have little or no dispatch range (i.e., their economic minimum operating limit equals their economic maximum operating limit). A resource that is operating inflexibly at its economic minimum operating limit or economic maximum operating limit is not dispatchable to serve an additional increment or decrement of demand, so is not eligible to set prices.96 Rules or modeling practices that prevent fast-start resources from setting prices result in prices that fail to reflect the cost of the marginal resource on the system when that resource is needed to serve load.

    95See Midwest Indep. Transmission Sys. Operator, Inc., 140 FERC ¶ 61,067, at P 38 (2012) (finding that MISO's LMP pricing algorithm, which prohibited fast-start resources from setting the market clearing price, “may produce an inaccurate price signal”).

    96See Federal Energy Regulatory Commission, Price Formation in Organized Wholesale Electricity Markets: Staff Analysis of Operator-Initiated Commitments in RTO and ISO Markets, Docket No. AD14-14-000, at 26-27 (Dec. 2014), http://www.ferc.gov/legal/staff-reports/2014/AD14-14-operator-actions.pdf.

    38. While PJM and NYISO allow certain block-loaded resources to set prices, they do not generally allow fast-start resources that are not block-loaded to set prices. CAISO allows only certain block-loaded and nearly block-loaded resources to set prices. In addition, PJM's practice of relaxing the economic minimum operating limits of block-loaded resources by at most ten percent could restrict the set of circumstances in which such a resource could set prices.

    39. Second, even if fast-start resources were allowed to set prices, certain other aspects of some current RTO/ISO fast-start pricing practices, such as not choosing to include commitment costs, can prevent prices from accurately reflecting the marginal cost of serving load. Because of their operating characteristics, fast-start resources are uniquely situated to respond to unforeseen real-time system needs. When fast-start resources are committed in real-time, it is often at short notice to meet some system condition or market need over a short time period, and, as such, we preliminarily find that these commitment costs should be considered marginal costs. However, this is not the current practice in all RTOs/ISOs, and we preliminarily find that market rules in some RTOs/ISOs that prevent prices from reflecting commitment costs of fast-start resources may contribute to inaccurate price signals.

    40. Third, some current practices regarding the use of offline resources to set prices in certain RTOs/ISOs may distort price signals. For example, MISO allows offline fast-start resources to set prices under transmission constraint violations or reserve shortage conditions, although sometimes such resources are not feasible (i.e., the resources are not able to start up quickly enough to address the shortage or transmission constraint violation) or economic for addressing the shortage or transmission constraint violation.97 If an offline fast-start resource is not actually feasible or economic for addressing a shortage or transmission constraint violation, then the resulting prices could be inefficiently low and mute the price signals associated with shortages or transmission constraint violations.98

    97 MISO, Informational Report on Extended Locational Marginal Pricing, Docket No. ER12-668-000, at 9 (Aug. 29, 2016). MISO states that for reserve shortages, 53 percent of participating offline fast-start units were feasible and economic. For transmission violations, it states that 77 percent of participating offline units were feasible and economic.

    98See, e.g., Potomac Economics, 2015 State of the Market Report for the MISO Electricity Markets at 33 (June 2016).

    41. Fourth, we are concerned that implementation of fast-start pricing in the real-time market only, or implementation of fast-start pricing practices in the day-ahead market that are significantly different from the real-time market, can negatively impact day-ahead and real-time price convergence and may result in day-ahead market prices that fail to reflect the marginal cost of fast-start resources. Furthermore, even though some RTOs/ISOs have implemented some form of fast-start pricing in the day-ahead market, current rules limit which resources qualify as fast-start resources in a manner that is inconsistent with the requirements herein.

    42. Accordingly, we preliminarily find that, based on experience with existing RTO/ISO fast-start pricing practices, some forms of fast-start pricing may result in prices that fail to reflect the marginal cost of production in intervals when fast-start resources are needed to serve load. As a result, prices in RTO/ISO energy markets in some periods may not reflect the value that fast-start resources provide. As a result, over the long run, prices in RTO/ISO energy markets may fail to reflect the need for fast-start resources and thus fail to provide appropriate incentives for investment.

    43. We also preliminarily find that existing RTO/ISO fast-start pricing could create unnecessary uplift payments. For example, when prices do not sufficiently reflect a marginal fast-start resource's commitment cost, the resource must be compensated through out-of-market uplift payments. Compensating resources through uplift payments is less transparent than compensating resources through market clearing prices that reflect the marginal cost of production, which could be based on the costs of a fast-start resource. Additionally, uplift payments are often allocated more broadly, which can mute the investment signals provided by prices over longer time periods, therefore inhibiting efficient market entry and exit. In addition, resources with costs below the market-clearing price may also have a lower financial incentive to perform at times when fast-start resources typically operate, such as during stressed system conditions, when the performance of all resources is particularly important.99

    99Settlement Intervals and Shortage Pricing in Markets Operated by Regional Transmission Organizations and Independent System Operators, Order No. 825, FERC Stats. & Regs. ¶ 31,384, at P 58 & n.99 (2016).

    D. Commission Proposal

    44. To remedy the potentially unjust and unreasonable rates caused by existing RTO/ISO fast-start pricing practices, we propose, pursuant to section 206 of the Federal Power Act,100 to establish a set of fast-start pricing requirements in RTOs/ISOs. These requirements would ensure RTO/ISO day-ahead and real-time markets more accurately reflect the marginal costs of operating fast-start resources. Specifically, we propose to require each RTO/ISO to establish the following set of requirements for its fast-start pricing: (1) Apply fast-start pricing to any resource committed by the RTO/ISO that is able to start up within ten minutes, has a minimum run time of one hour or less, and that submits economic energy offers to the market; (2) incorporate commitment costs, i.e., start-up and no-load costs, of fast-start resources in energy and operating reserve prices; (3) modify fast-start pricing to relax the economic minimum operating limit of fast-start resources and treat them as dispatchable from zero to the economic maximum operating limit for the purpose of calculating prices; (4) if the RTO/ISO allows offline fast-start resources to set prices for addressing certain system needs, the resource must be feasible and economic; and (5) incorporate fast-start pricing in both the day-ahead and real-time markets. We seek comment on each of these proposals.

    100 16 U.S.C. 824e (2012).

    45. We expect that the proposed reforms will remedy current RTO/ISO fast-start pricing practices that potentially lead to unjust and unreasonable rates and will provide benefits that are consistent with the goals of the Commission's price formation initiative. For instance, the proposed reforms are intended to more accurately reflect the marginal cost of production in periods when a fast-start resource is the marginal resource and provide price signals that better inform investment decisions, including where and when fast-start resources should be built or maintained. The proposed reforms will also benefit markets by providing more accurate and transparent price signals that better reflect the actual marginal cost of serving load and reduce uplift.

    1. Fast-Start Resource Definitions and Resource Eligibility

    46. In order to establish consistent treatment for fast-start resources across RTOs/ISOs and ensure that prices appropriately reflect the cost of serving load, we propose to require that each RTO/ISO must define fast-start resources as resources that meet the following performance requirements: 101 (1) Are able to start up within ten minutes or less; (2) have a minimum run time of one hour or less; and (3) submit economic energy offers to the market, i.e., not self-scheduling energy. We preliminarily find that this definition of fast-start resources will address the deficiencies in current RTO/ISO fast-start pricing practices that limit the eligibility of certain fast-start resources to set prices.102 In addition, any resource, regardless of technology type, that meets the above definition would qualify as a fast-start resource and would then be covered by the fast-start pricing requirements, as defined further herein.

    101 RTOs/ISOs would need to routinely assess a resource's currently effective parameters and status prior to conferring fast-start pricing eligibility.

    102See supra section II.C. We understand that this proposed definition of fast-start resource could require changes to previously approved RTO/ISO pricing practices. However, as discussed further below, we seek comment on this proposed definition, and will consider these comments in the development of any Final Rule in this proceeding.

    47. We preliminarily find that it is appropriate to include both dispatchable fast-start resources and block-loaded fast-start resources in the definition of a fast-start resource, as is done in ISO-NE and MISO. That is, some fast-start resources are committed and dispatched to an output level equal to the resource's economic minimum operating limit that is lower than the resource's economic maximum operating limit. Such a resource would not be eligible to set prices in all circumstances and would therefore create the same concerns we have regarding block-loaded fast-start resources. Further, if only block-loaded fast-start resources are included in the definition, as is done in CAISO and NYISO, certain resources could have the incentive to restrict the operating range in their energy supply offers.103 Moreover, it appears that a variety of technologies beyond conventional generation can and should be eligible for dispatch under fast-start pricing. For example, both MISO and ISO-NE allow certain demand response resources to set prices under their fast-start pricing.104 Given that a variety of resources could be the last resource dispatched to serve load (i.e., the marginal resource), we propose to use the performance requirements noted earlier to define fast-start resources, rather than specific technological characteristics.

    103 For example, if only block-loaded fast-start resources are eligible for fast-start pricing, some resources may have an incentive to reduce their dispatchable range, which could lead to inefficient results, such as a reduction in system flexibility.

    104 MISO, FERC Electric Tariff, Schedule 29A, ELMP for Energy and Operating Reserve Market: Ex-Post Pricing Formulations (40.0.0); ISO-NE, Transmission, Markets and Services Tariff, Market Rule 1, III.2.4 (19.0.0).

    48. We seek comment on this proposed definition of fast-start resources. For example, we seek comment on whether the definition of fast-start resources should include resources that have start-up times of greater than ten minutes. Similarly, we seek comment on whether the definition of fast-start resources should include resources with minimum run times of longer than one hour. We also seek comment on whether there are other characteristics that should be included in the definition of fast-start resources. Additionally, we seek comment on any additional tariff changes that may be necessary to implement the reforms proposed herein. Finally, we seek comment on whether this proposed definition should instead define minimum standards for each operating characteristic necessary to be considered a fast-start resource, to, among other things, allow regional variation.

    2. Inclusion of Start-Up and No-Load Costs in Prices

    49. We propose to require RTOs/ISOs to allow fast-start resources' commitment costs, i.e., start-up and no-load costs,105 to be reflected in prices. Specifically, we propose to require that, in the pricing run, each RTO/ISO determine prices by calculating an enhanced energy offer for each fast-start resource that includes not just the incremental energy offer but also incorporates start-up and no-load costs. Specifically, the enhanced energy offer should include the following components: (1) The incremental energy offer; (2) the amortized start-up cost; and (3) an amortized portion of the no-load cost, as described below. The enhanced energy offer can only be used to set prices during the resource's minimum run time, as discussed further below.

    105 No-load costs are the theoretical costs in $/hour for operating a resource at zero MW output.

    50. To incorporate a fast-start resource's start-up and no-load costs into prices, we propose to define specific formulations. Recognizing that commitment costs may be determined in different ways in RTOs/ISOs, these proposals are not intended to alter how a resource's start-up and no-load costs are calculated. To incorporate a fast-start resource's start-up cost into prices, we propose to define a resource's amortized start-up cost as equal to its start-up cost divided by the product of its economic maximum operating limit and minimum run time. To determine the portion of a fast-start resource's no-load costs that is reflected in prices, we propose to define the amortized no-load cost as the no-load cost divided by the resource's economic maximum operating limit. For both amortized start-up and no-load costs, we propose to accept any mathematically equivalent formula.106

    106 For instance, the RTO/ISO could introduce a fractional commitment variable for fast-start resources within the market pricing algorithm. Adding such a variable provides an additional option of introducing a portion of the capability of a resource in the solution while adding only an equivalent fraction of the amortized commitment cost.

    51. We preliminarily find that given the unique operating characteristics of fast-start resources, their commitment costs, i.e., start-up and no-load costs, should be viewed as marginal costs and, as such, should be included in prices. The Commission previously accepted MISO's ELMP methodology, which allows commitment costs to affect prices. There, the Commission found that incorporating the commitment costs of fast-start resources in prices leads to prices that better reflect the costs of committing and dispatching resources.107 Moreover, incorporating a fast-start resource's start-up and no-load costs would ensure that prices reflect the actual marginal cost of production and will thus reduce uplift.

    107Midwest Indep. Transmission Sys. Operator, Inc., 140 FERC ¶ 61,067 at P 39.

    52. As noted above, we propose that the enhanced energy offer can only be used to set prices during the resource's minimum run time. While it could be argued that commitment costs for fast-start resources are still marginal costs of operating the system even beyond a fast-start resource's minimum run time, attempting to amortize start-up costs beyond the minimum run time is problematic from a practical standpoint, specifically in the real-time market. This is because, after the minimum run time is completed, the unit commitment algorithm may decommit the fast-start resource if it is no longer economic, making the total run time unknown. When the actual run time of the fast-start resource is unknown, it is difficult to define an appropriate period over which to amortize that resource's start-up cost. Given that the resource must operate for no less than its minimum run time, we believe that amortizing a fast-start resource's commitment costs during this period represents a reasonable approach.108

    108 This proposal does not address RTOs/ISOs including no-load costs in prices beyond a fast-start resource's minimum run time.

    53. We seek comment on the proposal to include a fast-start resource's start-up and no-load costs as marginal costs. We also seek comment on whether to amortize commitment costs for the purpose of calculating prices, and the proposed formulas to amortize these costs. In particular, we understand that the amortization period for commitment costs acts as a proxy for the timeframe over which the committed fast-start resource is likely to be marginal. Therefore, we seek comment on whether there are better or alternative timeframes over which commitment costs for fast-start resources should be amortized. We also specifically seek comment on whether the economic maximum operating limit is the appropriate value to use when amortizing start-up and no-load costs or whether another capacity value may be more appropriate.

    3. Relaxation of Economic Minimum Operating Limit

    54. We propose to require RTOs/ISOs, in the pricing run, to relax to zero each fast-start resource's economic minimum operating limit, thereby treating these resources as fully dispatchable for the purpose of calculating prices. Relaxing the economic minimum operating limit of a fast-start resource to zero will permit an inflexible or mostly inflexible fast-start resource to be treated as dispatchable by the RTO/ISO market software during the pricing run. The purpose of this proposal is to enable a fast-start resource to set the market clearing price if it is, indeed, the marginal unit needed to serve load. Additionally, RTOs/ISOs must ensure that they sufficiently address over-generation concerns. Specifically, each RTO/ISO must ensure that physical dispatch instructions to resources do not result in over-generation and must have market rules that address the potential for over-generation due to deviations from dispatch instructions. As noted above, RTOs/ISOs with fast-start pricing already use penalties and/or opportunity cost payments to ensure that resources adhere to scheduled dispatch instructions.109 We propose that, as part of its compliance filing to any Final Rule, each RTO/ISO should either demonstrate that its current practices meet the requirements established here to address over-generation, or propose additional tariff changes to do so.

    109See supra section II.A; MISO, FERC Electric Tariff, § 40.3.4 (33.0.0) (charges for excessive or deficient energy deployment); ISO-NE., Transmission, Markets and Services Tariff, Market Rule 1, III.F.2.3.10 (24.0.0) (lost opportunity cost credit for resources displaced by fast-start resources).

    55. We seek comment on whether there are challenges associated with relaxing the economic minimum operating limit for the pricing run. We also seek comment on any over-generation concerns, such as whether over-generation can be managed through penalties for deviations, opportunity cost payments, or other existing mechanisms. Additionally, we seek comment on alternative methods to treat fast-start resources as fully dispatchable for the purpose of calculating prices.

    4. Offline Fast-Start Resources

    56. Allowing offline fast-start resources to set prices can better reflect the cost of providing energy at a given location or of meeting reserve requirements. For instance, if the real-time dispatch algorithm optimizes spinning reserve 110 supply among online resources and these online resources are not sufficient to meet the RTO's/ISO's spinning reserve requirements, the dispatch algorithm will determine there is a shortage of spinning reserve and implement the appropriate shortage pricing. However, in such circumstances, while online resources may not be sufficient to meet spinning reserve requirements, there may be offline fast-start resources that can quickly provide energy in the same time frame as spinning reserve. If RTOs/ISOs do not adequately consider all resources that are available to meet system needs, including fast-start resources that are offline, this may result in the use of administrative pricing or other measures (e.g., committing additional resources) that are less economically efficient because they do not reflect the availability of less expensive fast-start resources that could resolve the issue and thus result in higher overall system costs. Allowing RTOs/ISOs to include offline fast-start resources may have benefits; however, we do not propose to require that all RTOs/ISOs allow offline resources to set prices. Instead, we propose to establish certain requirements for those RTOs/ISOs that choose to allow offline fast-start resources to set prices.

    110 Spinning reserve refers to reserve capacity that is online and synchronized to the system and is ready to meet electric demand within ten minutes of a dispatch instruction by an RTO/ISO.

    57. While allowing offline fast-start resources to set prices can be beneficial, it is imperative that the offline resources actually be feasible (i.e., able to start quickly) and economic for addressing certain system needs.111 For example, an offline fast-start resource that has not reached its minimum down time would not actually be able to start to remedy a transmission constraint violation, energy shortage, or reserve shortage. Such an offline fast-start resource is not a feasible option to resolve the system issue and should not be allowed to set prices. Further, if online resources were not able to meet an RTO's/ISO's spinning reserve requirement, the dispatch algorithm would calculate the price based on an applicable shortage price. However, if offline fast-start resources are considered, there may be an offline fast-start resource that can be used to meet the spinning reserve requirement at a price lower than the shortage price. If, for example, the shortage price for spinning reserve was $80/MWh, it would only be economic to allow a fast-start resource to set prices if the full cost to operate the resource was less than $80/MWh. To accurately reflect the full cost of operating the fast-start resource, its offer would need to include start-up costs and no-load costs (amortized over a certain timeframe and capacity value). If the offline fast-start resource set prices at a level that did not reflect its full cost of operation, the resulting prices could be inefficiently low. For instance, if the offline fast-start resource set the spinning reserve price based on an offer that included only its incremental energy cost of $75/MWh, the resource would be setting the spinning reserve price, even though, if its full cost of operation was considered, it may not be more economic than establishing the shortage price of $80/MWh.

    111See Order No. 825, FERC Stats. & Regs. ¶ 31,384 at P 168 (“. . . we agree with Potomac Economics that if an RTO's/ISO's pricing model allows infeasible or uneconomic units to set prices, the offline units represent an artificial increase in real-time supply that will depress real-time prices.”).

    58. We propose to allow offline fast-start resources to be eligible to set prices if the resource is feasible and economic. As a threshold requirement, an offline fast-start resource may only be used to set prices (1) during a transmission constraint violation; or (2) if energy or ancillary service shortage conditions exist. Transmission constraint violations are defined as any instance where a transmission constraint is exceeded because the cost of redispatching resources to resolve the constraint is greater than the penalty factor associated with that constraint.112 Energy or ancillary service shortage conditions are defined as any instance where prices for energy or ancillary services are calculated using administrative prices as defined in the RTO's/ISO's tariff. To be considered feasible, we propose that an offline fast-start resource must meet the following criteria: (1) Have a start-up time of ten minutes or less; (2) have a generation shift factor of no less than 5 percent on the applicable transmission constraint that is being exceeded; and (3) must not have any operational constraints that would prevent the resource from starting and providing energy.113 We preliminarily find that a start-up time of ten minutes or less will ensure that offline fast-start resources are feasible to address transmission constraint violations or reserve shortages in a timeframe that is consistent with applicable facility ratings and contingency reserve deployment periods. Similarly, we preliminarily find that requiring a generation shift factor of no less than 5 percent will ensure that an offline fast-start resource used to set price during a transmission constraint violation can actually relieve the constraint if started. This minimum generation shift factor is similar to the threshold used in MISO, which is 6 percent.114 To be considered economic, the RTO/ISO's fast-start pricing must consider the full cost of an offline fast-start resource, including its amortized start-up and no-load costs. The offline fast-start resource's full cost must be less than the administrative shortage price for the shortage or transmission constraint violation the resource is resolving.

    112See Comments of Potomac Economics, Docket No. AD14-14-000, at 20 (Feb. 24, 2015).

    113 For example, the resource cannot be within its minimum down time and must not be prevented from starting due to environmental restrictions, fuel use restrictions, or other operational restrictions.

    114 MISO, FERC Electric Tariff, Schedule 29A, ELMP for Energy and Operating Reserve Market: Ex-Post Pricing Formulations (40.0.0), II.B, III.B.

    59. We seek comment on the proposal to reflect the costs of offline fast-start resources in prices in certain circumstances. Specifically, we seek comment on whether we should establish a standard amortization period for the commitment costs of offline fast-start resources for all RTOs/ISOs, similar to online fast-start resources, or whether RTOs/ISOs should be allowed to propose an amortization period on compliance. To determine a resource's full cost for the purpose of pricing, RTOs/ISOs could amortize a resource's costs over a particular time period. We also seek input on any additional rules for offline fast-start resources to ensure they will respond in time to meet the system needs beyond requiring that they be feasible and economic for addressing system needs. We also seek comment on the market conditions under which offline fast-start resources should be able to set prices (e.g., transmission constraint violations, energy or operating reserve shortages).

    5. Day-Ahead and Real-Time Market Consistency

    60. We propose to require RTOs/ISOs to incorporate fast-start pricing in both the day-ahead and real-time markets. We preliminarily find that doing so provides a more accurate price signal in the day-ahead market and supports price convergence between the day-ahead and real-time markets.

    61. As discussed above, fast-start resources are frequently used to quickly respond to real-time system conditions. However, under certain market conditions, such as high day-ahead demand or persistent congestion patterns, fast-start resources may economically clear the day-ahead market. For reasons similar to the ones discussed above, we believe that when these resources economically clear the market, market prices should reflect the marginal cost of these resources. By allowing fast-start resources to set prices, RTO/ISO markets will send a transparent price signal that more accurately reflects marginal costs.

    62. We further preliminarily find that requiring consistent pricing practices in both the day-ahead and real-time markets will lead to better price convergence, and therefore we believe these benefits merit implementation of fast-start pricing in both the day-ahead and real-time markets. Absent consistent pricing in both the day-ahead and real-time markets, day-ahead and real-time market prices may be different even under similar market conditions. For example, the day-ahead and real-time markets in ISO-NE could produce different energy prices even under identical market conditions because the day-ahead market does not incorporate the commitment costs of fast-start resources in energy prices.

    63. We seek comment on the proposal to incorporate consistent fast-start pricing in both day-ahead and real-time markets. Specifically, we acknowledge that implementation in the day-ahead market may have a smaller benefit given that most fast-start resources clear in the real-time market, and we thus seek comment on the extent to which there are benefits or drawbacks to applying the proposed reforms to both the day-ahead and real-time markets, as opposed to only the real-time markets. Further, we seek comment on whether there are any reasons for establishing different fast-start pricing practices in the day-ahead and real-time markets. In particular, we seek comment on including commitment costs in the day-ahead market given different forecast, optimization, and commitment time horizons than the real-time market, where fast-start units can have brief dispatch periods to meet system needs.

    6. Additional Comments Sought on This Proposal

    64. We seek comment on the need for reform and on the five proposals outlined above.115 We also seek comment on whether allowing fast-start resources to set prices could result in the exercise of market power. For example, the concentrated ownership of fast-start resources could raise market power concerns that are not addressed in existing RTO/ISO market power mitigation procedures.116

    115 These five proposals are: (1) An RTO/ISO must apply fast-start pricing to any resource committed by the RTO/ISO that is able to start up within ten minutes, has a minimum run time of one hour or less, and that submits economic energy offers to the market; (2) an RTO/ISO should incorporate commitment costs of fast-start resources in energy and operating reserve prices; (3) an RTO/ISO must modify its fast-start pricing to relax the economic minimum operating limit of fast-start resources and treat them as dispatchable from zero to the economic maximum operating limit for the purpose of calculating prices; (4) if an RTO/ISO allows offline fast-start resources to set prices for addressing certain system needs, the resource must be feasible and economic; and (5) an RTO/ISO must incorporate fast-start pricing in both the day-ahead and real-time markets.

    116 Such procedures could include any procedures or conduct and impact tests that provide offer and physical operating parameter mitigation for economic withholding, physical withholding, or out-of-market commitment.

    65. We recognize the potential that the proposed reforms may require significant changes to RTO/ISO software systems, which can be a complex and costly endeavor. We seek comment on the required software changes, updates to optimization modeling and parameter inputs, estimated costs and time necessary to implement aspects of the reforms proposed in this NOPR, and any additional considerations for implementing the requirements proposed herein.

    III. Compliance

    66. We propose to require that each RTO/ISO submit a compliance filing within 90 days of the effective date of any eventual Final Rule in this proceeding to demonstrate that it meets the proposed requirements set forth in any Final Rule. We note that this compliance deadline is for RTOs/ISOs to submit proposed tariff changes or otherwise demonstrate compliance with any Final Rule. We understand that implementing the reforms required by any Final Rule in this proceeding may be a complex endeavor. However, we preliminarily find that implementation of these reforms is important to ensure rates remain just and reasonable. Therefore, we propose that tariff changes filed in response to a Final Rule in this proceeding must become effective no more than six months after compliance filings are due. We seek comment on this proposed compliance timeline.

    67. We seek comment on the proposed deadline for RTOs/ISOs to submit the compliance filing 90 days following the effective date of any Final Rule in this proceeding. Specifically, we seek comment on whether 90 days is sufficient time for RTOs/ISOs to develop new tariff language in response to any Final Rule.

    68. To the extent that any RTO/ISO believes that it already complies with the reforms proposed in this NOPR, the RTO/ISO would be required to demonstrate how it complies in the compliance filing required 90 days after the effective date of any Final Rule in this proceeding. To the extent that any RTO/ISO seeks to argue on compliance that its existing market rules are consistent with or superior to the reforms adopted in any Final Rule, the Commission will entertain those at that time.117

    117See, e.g., Order No. 825, FERC Stats. & Regs. ¶ 31,384 at P 72; Demand Response Compensation in Organized Wholesale Energy Markets, Order No. 745, FERC Stats. & Regs. ¶ 31,322, at P 4 & n.7, order on reh'g and clarification, Order No. 745-A, 137 FERC ¶ 61,215 (2011), reh'g denied, Order No. 745-B, 138 FERC ¶ 61,148 (2012), vacated sub nom. Elec. Power Supply Ass'n v. FERC, 753 F.3d 216 (D.C. Cir. 2014), rev'd & remanded sub nom. FERC v. Elec. Power Supply Ass'n, 136 S. Ct. 760 (2016).

    IV. Information Collection Statement

    69. The Paperwork Reduction Act (PRA) 118 requires each federal agency to seek and obtain Office of Management and Budget (OMB) approval before undertaking a collection of information directed to ten or more persons or contained in a rule of general applicability. OMB regulations 119 require approval of certain information collection requirements imposed by agency rules. Upon approval of a collection of information, OMB will assign an OMB control number and an expiration date. Respondents subject to the filing requirements of an agency rule will not be penalized for failing to respond to the collection of information unless the collection of information displays a valid OMB control number.

    118 44 U.S.C. 3507(d).

    119 5 CFR 1320.

    70. The reforms proposed in this NOPR would amend the Commission's regulations to improve the operation of organized wholesale electric power markets operated by RTOs/ISOs. The Commission proposes to require each RTO and ISO implement market rules that meet certain requirements when pricing fast-start resources. The reforms proposed in this NOPR would require one-time filings of tariffs with the Commission and potential software upgrades to implement the reforms proposed in this NOPR. The Commission anticipates the reforms proposed in this NOPR, once implemented, would not significantly change currently existing burdens on an ongoing basis. With regard to those RTOs/ISOs that believe that they already comply with the reforms proposed in this NOPR, they could demonstrate their compliance in the compliance filing required 90 days after the effective date of any Final Rule in this proceeding. The Commission will submit the proposed reporting requirements to OMB for its review and approval under section 3507(d) of the Paperwork Reduction Act.120

    120 44 U.S.C. 3507(d) (2012).

    71. While the Commission expects the adoption of the reforms proposed in this NOPR to provide significant benefits, the Commission understands implementation can be a complex endeavor. The Commission solicits comments on the accuracy of provided burden and cost estimates and any suggested methods for minimizing the respondents' burdens, including the use of automated information techniques. Specifically, the Commission seeks detailed comments on the potential cost and time necessary to implement aspects of the reforms proposed in this NOPR, including (1) hardware, software, and business processes changes; and (2) processes for RTOs/ISOs to vet proposed changes amongst their stakeholders.

    72. Burden Estimate:121 The Commission believes that the burden estimates below are representative of the average burden on respondents, including necessary communications with stakeholders. The estimated burden and cost for the requirements contained in this NOPR follow.122

    121 Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, disclose, or provide information to or for a federal agency, including: “. . . (ii) Developing, acquiring, installing, and utilizing technology and systems for the purpose of collecting, validating, and verifying information; (iii) Developing, acquiring, installing, and utilizing technology and systems for the purpose of processing and maintaining information; (iv) Developing, acquiring, installing, and utilizing technology and systems for the purpose of disclosing and providing information. . . .” 5 CFR 1320.3(b)(1) (2016). The time, effort, and financial resources necessary to comply with a collection of information that would be incurred by persons in the normal course of their activities (e.g., in compiling and maintaining business records) will be excluded from the “burden” if the agency demonstrates that the reporting, recordkeeping, or disclosure activities needed to comply are usual and customary.

    122 For this information collection, the Commission staff estimates that industry is similarly situated in terms of hourly cost (wages plus benefits). Based on the Commission's average cost (wages plus benefits) for 2016, the Commission is using $74.50/hour.

    Number of
  • respondents
  • Annual
  • number of
  • responses per
  • respondent
  • Total number
  • of responses
  • Average burden
  • hours and cost
  • per response 123
  • Total annual burden hours and
  • total annual cost
  • Cost per
  • respondent
  • ($)
  • (1) (2) (1) * (2) = (3) (4) (3) * (4) = (5) (5) ÷ (1) Tariff filing costs 6 1 6 80 hours, $5,920 480 hours, $35,520 Implementation costs 6 1 6 3,853 hours, $285,122 23,118 hours, $1,710,732 Total (one-time in Year 1) 3,933 hours, $291,042 23,598 hours, $1,746,252 $291,042

    Cost to Comply: The Commission has projected the total cost of compliance, all within six months of a Final Rule plus initial implementation, to be $1,746,252. After Year 1, the reforms proposed in this NOPR, once implemented, would not significantly change existing burdens on an ongoing basis.

    123 The Commission staff anticipates that the average respondent for this collection is similarly situated to the Commission, in terms of salary plus benefits. Based upon FERC's 2016 annual average of $154,647 (for salary plus benefits), the average hourly cost is $74.50/hour.

    Title: FERC-516E, NOPR in RM17-3.

    Action: Proposed revisions to an information collection.

    OMB Control No.: TBD.

    Respondents for this Rulemaking: RTOs and ISOs.

    Frequency of Information: One-time during year one.

    Necessity of Information: The Commission proposes this rule to improve competitive wholesale electric markets in the RTO and ISO regions.

    Internal Review: The Commission has reviewed the proposed changes and has determined that the changes are necessary. These requirements conform to the Commission's need for efficient information collection, communication, and management within the energy industry. The Commission has assured itself, by means of internal review, that there is specific, objective support for the burden estimates associated with the information collection requirements.

    65. Interested persons may obtain information on the reporting requirements by contacting the following: Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426 [Attention: Ellen Brown, Office of the Executive Director], email: [email protected]erc.gov, Phone: (202) 502-8663, fax: (202) 273-0873. Comments on the collection of information and the associated burden estimate in the proposed rule should be sent to the Commission in this docket and may also be sent to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street NW., Washington, DC 20503 [Attention: Desk Officer for the Federal Energy Regulatory Commission], at the following email address: [email protected]. Please refer to Docket No.: RM17-3, FERC-516E, OMB Control No. 1902-0286 in your submission.

    V. Environmental Analysis

    73. The Commission is required to prepare an Environmental Assessment or an Environmental Impact Statement for any action that may have a significant adverse effect on the human environment.124 We conclude that neither an Environmental Assessment nor an Environmental Impact Statement is required for this NOPR under section 380.4(a)(15) of the Commission's regulations, which provides a categorical exemption for approval of actions under sections 205 and 206 of the FPA relating to the filing of schedules containing all rates and charges for the transmission or sale of electric energy subject to the Commission's jurisdiction, plus the classification, practices, contracts and regulations that affect rates, charges, classifications, and services.125

    124Regulations Implementing the National Environmental Policy Act of 1969, Order No. 486, FERC Stats. & Regs. ¶ 30,783 (1987).

    125 18 CFR 380.4(a)(15).

    VI. Regulatory Flexibility Act

    74. The Regulatory Flexibility Act of 1980 (RFA) 126 generally requires a description and analysis of proposed rules that will have significant economic impact on a substantial number of small entities. The RFA mandates consideration of regulatory alternatives that accomplish the stated objectives of a rule and that minimize any significant economic impact on a substantial number of small entities. The Small Business Administration's (SBA) Office of Size Standards develops the numerical definition of a small business.127 These standards are provided on the SBA Web site.128

    126 5 U.S.C. 601-12.

    127 13 CFR 121.101.

    128 U.S. Small Business Administration, Table of Small Business Size Standards Matched to North American Industry Classification System Codes (effective Feb. 26, 2016), https://www.sba.gov/sites/default/files/files/Size_Standards_Table.pdf.

    75. The SBA classifies an entity as an electric utility if it is primarily engaged in the transmission, generation and/or distribution of electric energy for sale. Under this definition, the six RTOs/ISOs are considered electric utilities, specifically focused on electric bulk power and control. The size criterion for a small electric utility is 500 or fewer employees.129 Since every RTO/ISO has more than 500 employees, none are considered small entities.

    129 13 CFR 121.201 (Sector 22, Utilities).

    76. Furthermore, because of their pivotal roles in wholesale electric power markets in their regions, none of the RTOs/ISOs meet the last criterion of the two-part RFA definition of a small entity: “not dominant in its field of operation.” 130 As a result, we certify that the reforms required by this NOPR would not have a significant economic impact on a substantial number of small entities.

    130 The RFA definition of “small entity” refers to the definition provided in the Small Business Act, which defines a “small business concern” as a business that is independently owned and operated and that is not dominant in its field of operation. The Small Business Administration's regulations at 13 CFR 121.201 define the threshold for a small Electric Bulk Power Transmission and Control entity (NAICS code 221121) to be 500 employees. See 5 U.S.C. 601(3) (citing to section 3 of the Small Business Act, 15 U.S.C. 632).

    VII. Comment Procedures

    77. The Commission invites interested persons to submit comments on the matters and issues proposed in this notice to be adopted, including any related matters or alternative proposals that commenters may wish to discuss. Comments are due February 28, 2017. Comments must refer to Docket No. RM17-3-000, and must include the commenter's name, the organization they represent, if applicable, and their address in their comments.

    78. The Commission encourages comments to be filed electronically via the eFiling link on the Commission's Web site at http://www.ferc.gov. The Commission accepts most standard word processing formats. Documents created electronically using word processing software should be filed in native applications or print-to-PDF format and not in a scanned format. Commenters filing electronically do not need to make a paper filing.

    79. Commenters that are not able to file comments electronically must send an original of their comments to: Federal Energy Regulatory Commission, Secretary of the Commission, 888 First Street NE., Washington, DC 20426.

    80. All comments will be placed in the Commission's public files and may be viewed, printed, or downloaded remotely as described in the Document Availability section below. Commenters on this proposal are not required to serve copies of their comments on other commenters.

    VIII. Document Availability

    81. In addition to publishing the full text of this document in the Federal Register, the Commission provides all interested persons an opportunity to view and/or print the contents of this document via the Internet through the Commission's Home Page (http://www.ferc.gov) and in the Commission's Public Reference Room during normal business hours (8:30 a.m. to 5:00 p.m. Eastern time) at 888 First Street NE., Room 2A, Washington, DC 20426.

    82. From the Commission's Home Page on the Internet, this information is available on eLibrary. The full text of this document is available on eLibrary in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number excluding the last three digits of this document in the docket number field.

    83. User assistance is available for eLibrary and the Commission's Web site during normal business hours from the Commission's Online Support at (202) 502-6652 (toll free at 1-866-208-3676) or email at [email protected], or the Public Reference Room at (202) 502-8371, TTY (202) 502-8659. Email the Public Reference Room at [email protected].

    List of Subjects in 18 CFR Part 35

    Electric power rates, Electric utilities.

    By direction of the Commission.

    Dated: December 15, 2016. Nathaniel J. Davis, Sr., Deputy Secretary.
    Regulatory Text

    In consideration of the foregoing, the Commission proposes to amend Part 35, Chapter I, Title 18, Code of Federal Regulations, as follows:

    PART 35—FILING OF RATE SCHEDULES AND TARIFFS 1. The authority citation for part 35 continues to read as follows: Authority:

    16 U.S.C. 791a-825r, 2601-2645; 31 U.S.C. 9701; 42 U.S.C. 7101-7352.

    2. Amend § 35.28 by adding paragraph (g)(10) to read as follows:
    § 35.28 Non-discriminatory open access transmission tariff.

    (g) * * *

    (10) Pricing fast-start resources—(i) Definition of fast-start resources. A fast-start resource is any resource that is able to start up within ten minutes or less, that has a minimum run time of one hour or less, and that submitted an economic energy offer to the market.

    (ii) Application to both day-ahead and real-time markets. A Commission-approved independent system operator or regional transmission organization with a tariff that contains a day-ahead and a real-time market must implement the following requirements in both the day-ahead and real-time markets. Implementation of the following requirements must be consistent between the day-ahead and real-time markets.

    (iii) Start-up and no-load costs. When a Commission-approved independent system operator or regional transmission organization makes a decision to commit a fast-start resource, it must calculate prices by determining a fast-start resource's enhanced energy offer, which includes the following components: The resource's incremental energy offer, amortized start-up cost, and amortized no-load cost. In using that offer to calculate prices for the real-time and day-ahead markets, each Commission-approved independent system operator and regional transmission organization must amortize a fast-start resource's start-up cost over the resource's minimum run time and its economic maximum operating limit and must divide a fast-start resource's no-load cost by the resource's economic maximum operating limit, but are only required to do so during the resource's minimum run time.

    (iv) Relaxation of economic minimum operating limit. Each Commission-approved independent system operator and regional transmission organization must relax to zero each fast-start resource's economic minimum operating limit such that the resource is able to be treated as fully dispatchable for purposes of calculating prices. Each Commission-approved independent system operator and regional transmission organization must ensure that physical dispatch instructions to resources do not result in over-generation and must have market rules that address the potential for over-generation due to deviations from dispatch instructions.

    (v) Offline fast-start resources. If a Commission-approved independent system operator or regional transmission organization uses offline fast-start resources to calculate prices, the resource must have a start-up time of ten minutes or less, must not have any operational constraints that would prevent the resource from starting and providing energy, and must set prices based on the resource's amortized full cost, including start-up and no-load costs, which must be less than the administrative shortage price for the shortage or transmission constraint violation the resource is resolving. In addition, an offline fast-start resource used to resolve a transmission constraint violation must have a generation shift factor of no less than 5 percent on the applicable transmission constraint that is being exceeded. Each Commission-approved independent system operator and regional transmission organization may use an offline fast-start resource to calculate prices only during a transmission constraint violation or during energy or ancillary service shortage conditions.

    The following appendix will not appear in the Code of Federal Regulations.

    Appendix—List of Short Names/Acronyms of Commenters Short name/acronym Commenter CAISO California Independent System Operator Corporation. DC Energy, Inertia Power, and Vitol DC Energy, LLC, Inertia Power, LP, and Vitol Inc. EEI Edison Electric Institute. EPSA Electric Power Supply Association. EPSA/IPPNY Electric Power Supply Association and Independent Power Producers of New York. EPSA/NEPGA Electric Power Supply Association and New England Power Generators Association, Inc. EPSA/P3 Electric Power Supply Association and PJM Power Providers. EPSA/WPTF Electric Power Supply Association and Western Power Trading Forum. Entergy Entergy Services, Inc. commented on behalf of the Entergy Operating Companies (Entergy Arkansas, Inc.; Entergy Louisiana, LLC; Entergy Mississippi, Inc.; Entergy New Orleans, Inc.; and Entergy Texas, Inc.). Exelon Exelon Corporation. Golden Spread Electric Golden Spread Electric Cooperative, Inc. IMG Midstream/Tangibl IMG Midstream LLC and Tangibl LLC. ISO-NE ISO New England Inc. LIPA Long Island Power Authority and Long Island Lighting Company d/b/a Power Supply Long Island. MISO Midcontinent Independent System Operator, Inc. PJM Market Monitor Monitoring Analytics, LLC. NYISO New York Independent System Operator, Inc. PJM PJM Interconnection, L.L.C. PSEG Companies PSEG Companies (Public Service Electric and Gas Company; PSEG Power LLC; and PSEG Energy Resources & Trade LLC). SPP Southwest Power Pool, Inc. Westar Westar Energy, Inc.
    [FR Doc. 2016-30971 Filed 12-29-16; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 101 [Docket No. FDA-2016-D-2335] Use of the Term “Healthy” in the Labeling of Human Food Products; Request for Information and Comments; Extension of Comment Period AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Notification; extension of comment period.

    SUMMARY:

    The Food and Drug Administration (FDA or we) is extending the comment period for a docket to receive information and comments on the use of the term “healthy” in the labeling of human food products. We established the docket through a notice that appeared in the Federal Register of September 28, 2016. In the notice, we requested comments on the term “healthy”, generally, and as a nutrient content claim in the context of food labeling; we also requested comments on specific questions contained in the notice. We are taking this action in response to requests for an extension to allow interested persons additional time to submit comments.

    DATES:

    FDA is extending the comment period on the notice that published in the Federal Register of September 28, 2016 (81 FR 66562). Submit either electronic or written comments by April 26, 2017.

    ADDRESSES:

    You may submit comments as follows:

    Electronic Submissions

    Submit electronic comments in the following way:

    Federal eRulemaking Portal: https://www.regulations.gov. Follow the instructions for submitting comments. Comments submitted electronically, including attachments, to https://www.regulations.gov will be posted to the docket unchanged. Because your comment will be made public, you are solely responsible for ensuring that your comment does not include any confidential information that you or a third party may not wish to be posted, such as medical information, your or anyone else's Social Security number, or confidential business information, such as a manufacturing process. Please note that if you include your name, contact information, or other information that identifies you in the body of your comments, that information will be posted on https://www.regulations.gov.

    • If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).

    Written/Paper Submissions

    Submit written/paper submissions as follows:

    Mail/Hand delivery/Courier (for written/paper submissions): Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

    • For written/paper comments submitted to the Division of Dockets Management, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”

    Instructions: All submissions received must include the Docket No. FDA-2016-D-2335 for “Use of the Term 'Healthy' in the Labeling of Human Food Products; Request for Information and Comments.” Received comments will be placed in the docket and, except for those submitted as “Confidential Submissions,” publicly viewable at https://www.regulations.gov or at the Division of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday.

    Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” We will review this copy, including the claimed confidential information, in our consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on https://www.regulations.gov. Submit both copies to the Division of Dockets Management. If you do not wish your name and contact information to be made publicly available, you can provide this information on the cover sheet and not in the body of your comments and you must identify this information as “confidential.” Any information marked as “confidential” will not be disclosed except in accordance with 21 CFR 10.20 and other applicable disclosure law. For more information about FDA's posting of comments to public dockets, see 80 FR 56469, September 18, 2015, or access the information at: http://www.fda.gov/regulatoryinformation/dockets/default.htm.

    Docket: For access to the docket to read background documents or the electronic and written/paper comments received, go to https://www.regulations.gov and insert the docket number, found in brackets in the heading of this document, into the “Search” box and follow the prompts and/or go to the Division of Dockets Management, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

    FOR FURTHER INFORMATION CONTACT:

    Vincent de Jesus, Center for Food Safety and Applied Nutrition (HFS-830), Food and Drug Administration, 5001 Campus Dr., College Park, MD 20740, 240-402-1450.

    SUPPLEMENTARY INFORMATION:

    In the Federal Register of September 28, 2016, we published a notice announcing the establishment of a docket to receive information and comments on the use of the term “healthy” in the labeling of human food products. The notice discussed FDA's position regarding the use of the term “healthy”, the events that prompted us to establish a docket to request information and comments on this issue, and specific issues for consideration. We provided a 120-day comment period that was scheduled to end on January 26, 2017.

    We have received requests to extend the comment period. The requests conveyed concern that the current 120-day comment period does not allow sufficient time to develop meaningful or thoughtful comments to the questions and issues we presented in the notice.

    We have considered the requests and are extending the comment period for 90 days, until April 26, 2017. We believe that a 90-day extension allows adequate time for interested persons to submit comments.

    Dated: December 27, 2016. Leslie Kux, Associate Commissioner for Policy.
    [FR Doc. 2016-31734 Filed 12-29-16; 8:45 am] BILLING CODE 4164-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 573 [Docket No. FDA-2016-F-3880] Novus International, Inc.; Filing of Food Additive Petition (Animal Use); Reopening of the Comment Period AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Notice of petition; reopening of the comment period.

    SUMMARY:

    The Food and Drug Administration (FDA) is reopening the comment period for the notice of petition, published in the Federal Register of November 8, 2016 (81 FR 78528), proposing that the food additive regulations be amended to provide for the safe use of poly (2-vinylpyridine-co-styrene) as a nutrient protectant for methionine hydroxy analog in animal food for beef cattle, dairy cattle, and replacement dairy heifers. Additionally, the petition proposes that the food additive regulations be amended to provide for the safe use of ethyl cellulose as a binder for methionine hydroxy analog to be incorporated into animal food. FDA is reopening the comment period to allow additional time for comments on environmental impacts.

    DATES:

    Submit either electronic or written comments by January 30, 2017.

    ADDRESSES:

    You may submit comments as follows:

    Electronic Submissions

    Submit electronic comments in the following way:

    Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments. Comments submitted electronically, including attachments, to http://www.regulations.gov will be posted to the docket unchanged. Because your comment will be made public, you are solely responsible for ensuring that your comment does not include any confidential information that you or a third party may not wish to be posted, such as medical information, your or anyone else's Social Security number, or confidential business information, such as a manufacturing process. Please note that if you include your name, contact information, or other information that identifies you in the body of your comments, that information will be posted on http://www.regulations.gov.

    • If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).

    Written/Paper Submissions

    Submit written/paper submissions as follows:

    Mail/Hand delivery/Courier (for written/paper submissions): Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

    • For written/paper comments submitted to the Division of Dockets Management, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”

    Instructions: All submissions received must include the Docket No. FDA-2016-F-3880 for “Food Additives Permitted in Feed and Drinking Water of Animals; 2-Vinylpyridine-Co-Styrene.” Received comments will be placed in the docket and, except for those submitted as “Confidential Submissions,” publicly viewable at http://www.regulations.gov or at the Division of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday.

    Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on http://www.regulations.gov. Submit both copies to the Division of Dockets Management. If you do not wish your name and contact information to be made publicly available, you can provide this information on the cover sheet and not in the body of your comments and you must identify this information as “confidential.” Any information marked as “confidential” will not be disclosed except in accordance with 21 CFR 10.20 and other applicable disclosure law. For more information about FDA's posting of comments to public dockets, see 80 FR 56469, September 18, 2015, or access the information at: http://www.fda.gov/regulatoryinformation/dockets/default.htm.

    Docket: For access to the docket to read background documents or the electronic and written/paper comments received, go to http://www.regulations.gov and insert the docket number, found in brackets in the heading of this document, into the “Search” box and follow the prompts and/or go to the Division of Dockets Management, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

    FOR FURTHER INFORMATION CONTACT:

    Carissa Doody, Center for Veterinary Medicine (HFV-228), Food and Drug Administration, 7519 Standish Pl., Rockville, MD 20855, 240-402-6283, [email protected]

    SUPPLEMENTARY INFORMATION:

    In the Federal Register of November 8, 2016 (81 FR 78528), Novus Inc. proposed regulations be amended to provide for the safe use of poly (2-vinylpyridine-co-styrene) as a nutrient protectant for methionine hydroxy analog in animal food for beef cattle, dairy cattle, and replacement dairy heifers. Additionally, the petition proposes that the food additive regulations be amended to provide for the safe use of ethyl cellulose as a binder for methionine hydroxy analog to be incorporated into animal food.

    Interested persons were originally given until December 8, 2016, to comment on the petitioner's environmental assessment. The November 8, 2016, notice of petition was published with the incorrect docket number. A correction published in the Federal Register of November 29, 2016 (81 FR 85972). On our own initiative, we are reopening the comment period to allow potential respondents to thoroughly evaluate and address pertinent environmental issues.

    Dated: December 23, 2016. Leslie Kux, Associate Commissioner for Policy.
    [FR Doc. 2016-31606 Filed 12-29-16; 8:45 am] BILLING CODE 4164-01-P
    DEPARTMENT OF TREASURY Internal Revenue Service 26 CFR Part 31 [REG-123841-16] RIN 1545-BN58 Withholding on Payments of Certain Gambling Winnings AGENCY:

    Internal Revenue Service (IRS), Treasury.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    This document contains proposed regulations under section 3402(q) with respect to withholding on certain payments of gambling winnings from horse races, dog races, and jai alai and on certain other payments of gambling winnings. The proposed regulations affect both payers and payees of the gambling winnings subject to withholding under section 3402(q).

    DATES:

    Written or electronic comments and requests for a public hearing must be received by March 30, 2017.

    ADDRESSES:

    Send submissions to: CC:PA:LPD:PR (REG-123841-16), Room 5203, Internal Revenue Service, P.O. Box 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be hand-delivered Monday through Friday between the hours of 8 a.m. and 4 p.m. to CC:PA:LPD:PR (REG-123841-16), Courier's Desk, Internal Revenue Service, 1111 Constitution Avenue NW., Washington, DC 20224, or sent electronically, via the Federal eRulemaking Portal at http://www.regulations.gov (IRS REG-123841-16).

    FOR FURTHER INFORMATION CONTACT:

    Concerning the proposed regulations, David Bergman, (202) 317-6845; concerning submissions of comments or to request a public hearing, Regina Johnson, (202) 317-6901 (not toll-free numbers).

    SUPPLEMENTARY INFORMATION:

    Paperwork Reduction Act

    The collection of information contained in this notice of proposed rulemaking has been approved by the Office of Management and Budget through Form W-2G (OMB No. 1545-0238) in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)). Notice and an opportunity to comment on the proposed changes to burden hours for the forms related to this proposed rule will be published in a separate notice in the Federal Register.

    Background

    This document contains proposed regulations to amend the Employment Tax Regulations (26 CFR 31) under section 3402 of the Internal Revenue Code relating to withholding from gambling winnings for horse races, dog races, and jai alai. The proposed regulations update and clarify other provisions of § 31.3402(q)-1 and make conforming changes to § 31.3406(g)-2.

    Section 3402(q)(1) requires every person, including the United States government, a state, a political subdivision thereof, or any instrumentality of the foregoing, that makes any payment of gambling winnings to deduct and withhold tax on certain payments at the third-lowest tax rate applicable under section 1(c), which for the 2016 tax year is 25 percent. Section 3402(q)(2) provides an exemption from withholding under this section for payments of winnings to nonresident aliens and foreign corporations subject to withholding under sections 1441(a) or 1442(a). Section 3402(q)(3) describes the winnings subject to withholding as proceeds from a wager determined in accordance with the rules in that subsection.

    Whether winnings are subject to withholding depends on the type of wagering transaction, the proceeds from a wager, and in some cases the odds associated with a wager. Under sections 3402(q)(3)(B) and (C)(i), payers generally must withhold if the proceeds from a wager exceed $5,000 in a State-conducted lottery, other lottery, sweepstakes, or wagering pool. Under section 3402(q)(3)(A) and (C)(ii), in the case of a wagering transaction in a parimutuel pool with respect to horse races, dog races, or jai alai, the payer must withhold if the proceeds exceed $5,000 and are at least 300 times as large as the amount wagered. Winnings from bingo, keno, and slot machines are exempted from withholding under section 3402(q)(1) by section 3402(q)(5).

    Proceeds From a Wager and Identical Wagers

    Section 3402(q)(4) provides that proceeds from a wager are determined by reducing the amount received by the amount of the wager, and proceeds which are not money are taken into account at fair market value. The current regulations provide rules for determining the amount of proceeds from a wager, including a special rule for “identical wagers.” The rule treats “identical wagers” as paid with respect to a single wager for purposes of calculating the proceeds from the wager. See § 31.3402(q)-1(c)(ii).

    Neither the statute nor the existing regulations explicitly define the terms “wager” or “identical wagers,” but the regulation text of § 31.3402(q)-1(c)(ii), regarding rules for determining the amount of proceeds from a wager, and § 31.3402(q)-1(d) provide examples of wagers that are and are not identical wagers. For example, amounts paid on two bets placed in a parimutuel pool on a particular horse to win a particular race are treated as paid with respect to the same wager. These two bets would not be identical, however, if one bet was for the horse to win and the other bet was for the horse to place (which are bets in two separate parimutuel pools, as explained below). Those two bets would also not be identical if one bet was placed in a pool conducted by the racetrack and the other bet was placed in a separate pool conducted by an off-track betting establishment and such wagers are not pooled with those placed at the racetrack. In addition, two bets on the same race are not identical where the bettor makes an exacta bet on horse M to win and horse N to place and a trifecta bet on horse M to win, horse N to place, and horse O to show. See § 31.3402(q)-1(d), Example 11. The preamble to the current regulations provides the following definition for identical bets: “Identical bets are those in which winning depends on the occurrence (or non-occurrence) of the same event or events.” T.D. 7919 (48 FR 46296) (Oct. 12, 1983).

    The statute does not explicitly address how to determine the amount of the wager in the case of exotic wagers. Exotic wagers are those other than straight wagers. Straight wagers include bets to win (selecting the first-place finisher), place (selecting a finisher to place first or second), and show (selecting a finisher to place first, second, or third). Examples of exotic bets include multi-contestant bets, such as an exacta (selecting the first and second-place finishers in a single contest, in the correct order) and a trifecta (selecting the first, second, and third-place finishers in a single contest, in the correct order). Other examples include multi-contest bets such as a Pick 6 (selecting the first-place finisher in six consecutive contests).

    The instructions to Form W-2G provide the rule for multiple wagers reflected on a single ticket as follows: “For multiple wagers sold on one ticket, such as the $12 box bet on a Big Triple or Trifecta, the wager is considered as six $2 bets and not one $12 bet for purposes of computing the amount to be reported or withheld.” See, e.g., 2016 Instructions to Forms W-2G and 5754, at 2, available at https://www.irs.gov/pub/irs-pdf/iw2g.pdf. Thus, according to the instructions, the bettor may only consider the cost of a single winning combination when determining the amount wagered for purposes of determining whether proceeds from a wager meets the threshold for withholding in section 3402(q)(3)(C)(ii).

    2015 Request for Comments

    The Treasury Department and the IRS requested comments from the public on the treatment of wagers in parimutuel gambling on March 4, 2015, in a notice of proposed rulemaking (REG-132253-11) under section 6041 regarding information returns to report winnings from bingo, keno, and slot machine play. The notice of proposed rulemaking stated that taxpayers required to report winnings from parimutuel gambling may have concerns relating to when wagers with respect to horse races, dog races, and jai alai may be treated as identical and that the Treasury Department and the IRS intend to amend the regulations under § 31.3402(q)-1.

    Multiple commentators requested a rule that would take into account all money wagered in a particular parimutuel pool when determining proceeds from a wager for purposes of determining whether withholding under section 3402(q) was required. In particular, some commentators requested that the Treasury Department and the IRS revise the regulations to provide a definition of the “amount of the wager” when multiple bets are placed in the same pool to include the total amount wagered by a bettor into a specific parimutuel pool for purposes of determining whether wagering proceeds are subject to withholding and reporting. The commentators stated that this change would reflect innovations and changes to today's modern parimutuel wagering strategies.

    Reporting Rules

    Section 3402(q)(6) provides that recipients of gambling winnings subject to withholding must furnish a statement to the payer, under penalties of perjury, containing the name, address, and taxpayer identification number of the recipient and each person entitled to any portion of the payment. The current regulations provide that the statement, furnished on a Form W-2G, Certain Gambling Winnings, or Form 5754, Statement by Person(s) Receiving Gambling Winnings, also must indicate if the payee and any other persons entitled to payment are entitled to winnings from identical wagers. §§ 1.6011-3, 31.3402(q)-1(c)(ii). The payer may rely on this statement in determining the amount of proceeds from the wager. § 31.3402(q)-1(c)(ii).

    On or before February 28 (March 31 if filed electronically) of the calendar year following the calendar year in which the payment is made, the payer must file a return on Form W-2G with the Internal Revenue Service reporting the gambling winnings subject to withholding. § 31.3402(q)-1(f). Section 6041(d) and the instructions to Form W-2G require that the payer filing a Form W-2G also furnish a statement to the payee on or before January 31 of the calendar year following the calendar year in which the payment is made.

    Explanation of Provisions

    The current regulations for withholding from gambling winnings under section 3402(q) were last substantively amended in 1983. According to commentators, since that time, exotic bets on horse races, dog races, and jai alai have accounted for an increasing percentage of total bets placed on horse races, dog races, and jai alai. The increase in exotic betting, and in particular the use of certain methods of exotic betting, has resulted in scenarios where the current rules may result in withholding that significantly exceeds the individual gambler's ultimate income tax liability. In light of this, the proposed regulations amend the rules regarding how payers determine the amount of the wager in parimutuel wagering transactions with respect to horse races, dog races, and jai alai. Specifically, these proposed regulations address exotic bets on horse races, dog races, and jai alai by providing a new rule to determine the amount of the wager when wagers are placed in a single parimutuel pool and are reflected on a single ticket. In addition, the current regulations under section 3402(q) are updated to reflect current law regarding the withholding thresholds and certain information reporting requirements.

    I. Wagers in the Case of Horse Races, Dog Races, and Jai Alai A. Parimutuel Betting

    In parimutuel betting, which translates to betting “amongst ourselves,” the bettors themselves establish the odds and payouts, as opposed to having fixed odds. Each type of bet on a contest or series of contests goes into its own parimutuel pool. For example, each win bet goes into the win pool for that contest, regardless of the finisher selected to win. As amounts are wagered in the pool, the odds and payouts adjust accordingly. Following the contest or contests determinative of a particular pool, all bettors who placed a winning bet share the money placed in that particular pool, less the applicable takeout. Parimutuel betting in the United States is used in betting on horse races, dog races, and jai alai.

    Parimutuel betting involves both straight and exotic bets. Each type of straight or exotic bet is placed in its own parimutuel pool. For example, a trifecta bet on a particular contest goes into that contest's trifecta pool, regardless of the finishers or order of finish selected, and the trifecta pool is separate from the win pool, the exacta pool, and all other pools associated with that particular contest. Exotic bets provide greater odds and bigger pay-offs than straight bets.

    Multiple combinations of exotic bets may be placed on a single ticket, making it easier for bettors to place wagers on the various possible outcomes. For example in horse racing, bettors often use box, key, and wheel bets to place the same type of exotic bet (e.g., exacta or trifecta) on multiple combinations of outcomes. Box bets involve betting on all possible outcomes of a specific group of horses in the same race; for example, a three-horse exacta box is a bet in which three specific horses are selected to place first or second in any combination or order of finish. A bettor wins a three-horse exacta box bet if any combination of the bettor's three horses finishes first and second. Key bets involve betting a single horse in one position with all possible combinations of the other selected horses; for example, a trifecta key is a bet where a single horse is selected to win and the other horses included in the bet are selected to place second or third in any combination or order of finish. Finally, a wheel bet involves multiple horses in multiple combinations in multiple races; for example, a Daily Double wheel is a bet where a single horse is selected to win the first race and every horse is selected in the second race.

    B. Comments Regarding Current Treatment of Parimutuel Betting

    Commentators stated that since the regulations were last substantively amended, the rise in the number of exotic bets available at certain racetracks and the popularity of exotic betting has altered parimutuel betting practices. Commentators stated that, for example, in the 1978 Kentucky Derby, there were three types of bets available to be placed at Churchill Downs racetrack, where the Kentucky Derby is run. Those bets were bets to win, place, or show. By contrast, in the 2015 Kentucky Derby, there were twenty-three types of bets available to be placed at Churchill Downs racetrack, including the superfecta, super high five, and pick 7 jackpot. Furthermore, commentators stated that today approximately 67% of all parimutuel wagering occurs on exotic wagers (versus straight wagers), as compared to the 1970s when approximately 10% of parimutuel wagering occurred on exotic wagers.

    Further, commentators stated that the increase in availability of exotic betting has caused bettors to substantially increase their amounts wagered, often by placing box, key, and wheel bets, in a particular parimutuel pool to increase their chances of winning and increase the potential payout. In addition, commentators attributed the rise in popularity of exotic bets to the fact that exotic bets offer significantly higher odds. As a result, commentators stated that modern bettors are putting more money towards bets with greater potential payouts in anticipation of significant winnings.

    Commentators also stated that payouts from straight bets were rarely subject to withholding because they virtually never came close to exceeding the 300 to 1 ratio of proceeds to the amount of the wager. On the other hand, exotic bets do result in proceeds exceeding the amount of the wager by a 300 to 1 ratio; for example, seven different exotic bets at the 2015 Kentucky Derby produced payouts exceeding the 300 to 1 ratio. However, given the vast number of potential outcomes possible with exotic bets, the commentators stated that bettors are using techniques such as box, key, or wheel bets to increase their odds. As a result, it is undoubtedly the case that the winners wagered far more into the pool than the cost of the winning bet.

    Commentators stated that the tax treatment under the current rules ignores the actual investment in a single parimutuel pool and may result in withholding that significantly exceeds the amount necessary to cover the individual gambler's ultimate income tax liability and suggested changing the rule to take into account all wagers in the same parimutuel pool. The commentators provided the following example to illustrate this. A bettor makes a seven-horse trifecta box wager, which involves selecting a group of seven horses to place first, second, and third, in any order. This bet has 210 unique possible results. Assuming the bettor bets $20 on each combination, the total amount wagered is $4,200. At race time the winning combination carries 304 to 1 odds. After the race, the bettor holds a winning ticket that pays $6,100 ($304 × $20 wagered + $20 return of bet). Under the current rules, the racetrack would withhold $1,520 (($6,100−20) × 25%) and report $6,080 in winnings ($6,100−$20) because the rules treat only the $20 paid for the single winning combination as the amount wagered. However, the commentators stated that the individual has netted only $1,900 ($6,100 winnings less $4,200 wagered), and is left with $380 ($1,900−$1,520) once withholding taxes are taken out, which makes the withholding rate 80% of net winnings.

    Under the commentators' proposed change, the amount of the wager would be considered to be $4,200. Thus the racetrack would not withhold because the proceeds from the wager ($1,900) are less than the $5,000 withholding threshold and are also less than $1,260,000 (300 times the amount wagered). Similarly, the racetrack would not report the proceeds because they are not at least 300 times the amount wagered.

    The commentators noted that although the bettor may be able to deduct the losing wagers on the bettor's tax return at the end of the year as a miscellaneous itemized deduction, there would be other consequences. For example, the $1,520 withholding lowers the amount of money in circulation at the racetrack that day and reduces the bettor's cash on hand, whereas the commentators' proposed change would result in additional cash on hand to be bet in subsequent races.

    In addition, the commentators stated that the deduction for losing wagers results in reporting of higher adjusted gross income than would result under the commentator's proposed change. Commentators further stated that a higher adjusted gross income can cause the bettor to lose unrelated tax benefits. In addition, the deduction is only available if the bettor itemizes deductions and is not subject to the alternative minimum tax. Finally the commentators noted that many states limit itemized deductions for state tax purposes.

    C. Proposed Rule for the Amount of the Wager in the Case of Horse Races, Dog Races, and Jai Alai

    Proposed § 31.3402(q)-1(c)(ii) provides a new rule for purposes of determining the amount of the wager for wagering transactions in horse races, dog races, and jai alai. The proposed rule allows all wagers placed in a single parimutuel pool and represented on a single ticket to be aggregated and treated as a single wager for purposes of determining the amount of the wager. The proposed rule allows a payer to take into account the total amount wagered in a particular pool as reflected on a single ticket to determine whether the winnings are subject to withholding and reporting. This treatment better reflects the full cost of exotic bets. In addition, straight wagers are unlikely to have odds and produce payouts of at least 300 to 1, so they generally are not subject to withholding, regardless of the application of the proposed rule. The proposed regulations contain examples to illustrate the proposed rule for wagering transactions in the case of horse races, dog races, and jai alai.

    The proposed rule for determining the amount of the wager addresses the fact that the current rules may result in withholding that significantly exceeds the amount necessary to cover the individual gambler's ultimate income tax liability, and that creates an unnecessary burden on the bettor and the horse racing, dog racing, and jai alai industries. As described in the commentators' example, current rules for exotic bets placed as box, key, or wheel bets can result in an 80% withholding rate on net winnings from wagers placed in the same pool. This result has become more common in the decades since the regulations were last amended because the number of exotic bet types and the popularity of exotic bets have increased substantially, and various combinations of these exotic bets are often placed together on a single ticket as part of the same transaction.

    By limiting the amount of the wager in a wagering transaction with respect to horse races, dog races, and jai alai to the wagers represented on a single ticket, the proposed rule limits the potential for fraud and creates an administrable system for payers. The rule is administrable because it does not require payers to collect information regarding winning wagers where additional wagers placed in the same pool are reflected on multiple tickets. If bettors want to place additional wagers in the same parimutuel pool after already having purchased a ticket, commentators stated that bettors may be able to cancel the first ticket and place the original and additional wagers for that pool on a new ticket.

    The proposed regulations maintain the current rule regarding identical wagers. To clarify the meaning of the term, however, the proposed regulations provide a definition of identical wagers taken from the preamble of the current regulations. T.D. 7919 (48 FR 46296). The proposed regulations also move examples of identical wagers from the regulatory text to the examples section.

    The Treasury Department and the IRS request comments regarding whether the proposed rule addressing the amount of the wager in a wagering transaction in the case of horse races, dog races, and jai alai should apply to other types of gambling subject to withholding under section 3402(q), such as lotteries.

    II. Ministerial Updates to Current Regulations

    In addition to the proposed rule for wagers in horse races, dog races, and jai alai, the proposed regulations make ministerial updates to the current regulations to reflect current law.

    Proposed regulations § 31.3402(q)-1(a) and (b) are amended to reflect the current statutory tax rate for withholding (the third-lowest tax rate under section 1(c)) and the current statutory thresholds for withholding for all types of gambling covered by this regulation ($5,000). In 1992 and again in 2001, Congress amended section 3402(q)(1) to change the withholding rate first from 20 percent to 28 percent and then to its current level of “the third lowest rate of tax applicable under section 1(c),” but the current regulations do not reflect either of these statutory amendments. See Economic Growth and Tax Relief Reconciliation Act of 2001, Public Law 107-16, § 101(c)(8); Energy Policy Act of 1992, Public Law 102-486, § 1934(a). In 1992, Congress also amended sections 3402(q)(3)(A) and (C) to change the withholding threshold for certain types of gambling from $1,000 to $5,000, which the current regulations do not reflect. Energy Policy Act, § 1942(a). In addition, the proposed regulations remove certain dates reflecting transition periods, which are no longer necessary.

    In addition, proposed regulation § 31.3402(q)-1(c)(4) updates the rule regarding payments to nonresident aliens or foreign corporations.

    III. Information Reporting for Gambling Winnings Subject to Withholding Under Section 3402(q)

    Proposed regulations § 31.3402(q)-1(d) and (e) update and clarify the reporting rules for gambling winnings subject to withholding under section 3402(q). The amendments to § 31.3402(q)-1(d), regarding the statement by the payee of gambling winnings subject to withholding under section 3402(q), reorganize the current regulations into new sub-sections. Proposed § 31.3402(q)-1(d)(1) provides the general rule that each payer of gambling winnings subject to withholding under section 3402(q) must obtain a payee statement. Proposed § 31.3402(q)-1(d)(2) describes the content of the payee statement. Proposed § 31.3402(q)-1(d)(3) states the reliance rule currently described in § 31.3402(q)-1(c)(1)(ii) that where a payee furnishes the required payee statement and, as required by § 1.6011-3, indicates that he or she is entitled to winnings from identical wagers, the payer may rely on the statement in determining the total amount of proceeds from the wager.

    The amendments to proposed § 31.3402(q)-1(e), regarding the information return filed by the payer on Form W-2G, modernize the current reporting rules. First, the proposed regulations replace outdated references to the place of filing with a requirement that the return be filed with the appropriate Internal Revenue Service location designated in the instructions to the form.

    Second, the proposed regulations require the payer to report the taxpayer identification number of the winner in lieu of the social security number to allow for a broader range of taxpayer identification numbers, including individual taxpayer identification numbers (ITINs) and adoption taxpayer identification numbers (ATINs). This amendment allows truncation of the taxpayer identification number on the statement furnished by the payer to the payee because the regulation no longer requires a social security number. For provisions relating to the use of truncated taxpayer identification numbers, see § 31.6109-4 of this chapter.

    Third, the proposed regulations update the payee identification provisions. Section 31.3402(q)-1(f)(1)(v) of the current regulations provides that the identification verifying the payee's identity must include the payee's social security number. According to the current regulations, examples of acceptable identification include a driver's license, a social security card, or a voter registration card. However, today most forms of identification do not include a person's social security number. Therefore, many payees do not have identification that contains the payee's social security number and, even if they do, they may not have this identification with them at the time that they receive a payment of gambling winnings subject to withholding under section 3402(q).

    To address this issue, proposed §§ 31.3402(q)-1(e)(1)(v) and (e)(2) provide that, in addition to government-issued identification, a properly completed Form W-9 signed by the payee is an acceptable form of identification to verify the payee's identifying information. Payers who verify payee information using identification set forth in proposed §§ 31.3402(q)-1(e)(1)(v) and (e)(2) before the date that final regulations implementing these provisions are published in the Federal Register will be treated as meeting the requirements of § 31.3402(q)-1(f)(1)(v) of the current regulations.

    Fourth, the proposed regulations contain a special rule in § 31.3402(q)-1(e)(3) that tribal member identification cards need not contain the payee's photograph to meet the identification requirements in § 31.3402(q)-1(e)(1)(v) of the proposed regulations, provided specific criteria are met. This special rule responds to comments raised by Indian tribes in response to the notice of proposed rulemaking (REG-132253-11) under section 6041 regarding information returns to report winnings from bingo, keno, and slot machine play that many tribal identification cards do not contain photographs.

    Fifth, the proposed regulations update the obsolete reference to Form W-3G to reflect that payers should use Form 1096 to transmit Forms W-2G to the Internal Revenue Service.

    Finally, the proposed regulations in § 31.3402(q)-1(e)(5) provides that a payer filing an information return with the Internal Revenue Service must furnish a statement to the payee containing the same information on or before January 31st of the year following the calendar year in which payment of the winnings subject to withholding is made. See section 6041(d).

    Proposed amendments to the regulations under section 3406 update the reporting requirements to address horse races, dog races, and jai alai. Proposed § 31.3406(g)-2(d) is amended to clarify the definition of a reportable gambling winning and to add a cross-reference to § 31.3402(q)-1(c) for determining the amount of the wager in a wagering transaction with respect to horse races, dog races, and jai alai, or amounts paid with respect to identical wagers.

    Proposed Effective/Applicability Date

    These regulations are proposed to apply to payments made after the date of publication of the Treasury Decision adopting these rules as final regulations in the Federal Register.

    Statement of Availability of IRS Documents

    IRS published guidance cited in this preamble is published in the Internal Revenue Bulletin and is available from the Superintendent of Documents, U.S. Government Publishing Office, Washington, DC 20402, or by visiting the IRS Web site at http://www.irs.gov.

    Special Analyses

    Certain IRS regulations, including this one, are exempt from the requirements of Executive Order 12866, as supplemented and reaffirmed by Executive Order 13563. Therefore, a regulatory assessment is not required. It is hereby certified that this rule will not have a significant economic impact on a substantial number of small entities. This certification is based on the fact that this rule merely provides guidance regarding withholding and reporting requirements for payers of certain gambling winnings. The requirement for payers to withhold and make information returns is imposed by statute and not these regulations. In addition, this rule reduces the existing burden on payers to comply with the statutory requirement by decreasing the number of payments subject to withholding and reporting. Therefore, a Regulatory Flexibility Analysis under the Regulatory Flexibility Act (5 U.S.C. Chapter 6) is not required.

    Pursuant to section 7805(f) of the Internal Revenue Code, this notice of proposed rulemaking has been submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.

    Comments and Public Hearing

    Before these proposed regulations are adopted as final regulations, consideration will be given to any written comments (a signed original and eight (8) copies) or electronic comments that are submitted timely to the IRS. In addition to the requests for comments noted in the Background Section, Treasury and the IRS request comments on any other aspects of the proposed rules, and any other issues relating to the payment of gambling winnings that are not addressed in the proposed regulations. All comments will be available at www.regulations.gov for public inspection or upon request.

    A public hearing will be scheduled if requested in writing by any person that timely submits written comments. If a public hearing is scheduled, notice of the date, time, and place for the public hearing will be published in the Federal Register.

    Drafting Information

    The principal author of these proposed regulations is David Bergman of the Office of the Associate Chief Counsel (Procedure and Administration).

    List of Subjects in 26 CFR Part 31

    Employment taxes and collection of income tax at source.

    Proposed Amendments to the Regulations

    Accordingly, 26 CFR part 31 is proposed to be amended as follows:

    PART 31—EMPLOYMENT TAXES AND COLLECTION OF INCOME TAXES AT THE SOURCE Paragraph 1. The authority citation for part 31 continues to read in part as follows: Authority:

    26 U.S.C. 7805. * * *

    Par. 2. Section 31.3402(q)-1 is amended: 1. By revising paragraphs (a)(1), (b), and (c)(1) and (4). 2. By redesignating paragraph (d) as paragraph (f), paragraph (e) as paragraph (d), and paragraph (f) as paragraph (e). 3. By revising newly designated paragraphs (d) and (e). 4. In paragraph (f), removing Example 3 and Example 11, by redesignating Examples 4 through 10 as Examples 3 through 9, and adding examples 10 through 16. 5. In paragraph (f), in newly redesignated Example 4 by removing the language “Example 4” and adding in its place the language “Example 3” and in newly redesignated Example 6 by removing the language “Example 6” and adding in its place the language “Example 5” wherever it appears. 6. By adding paragraph (g).

    The revisions and additions read as follows:

    § 31.3402(q)-1 Extension of withholding to certain gambling winnings.

    (a) Withholding obligation—(1) General rule. Every person, including the Government of the United States, a State, or a political subdivision thereof, or any instrumentality of any of the foregoing making any payment of “winnings subject to withholding” (defined in paragraph (b) of the section) shall deduct and withhold a tax in an amount equal to the product of the third lowest rate of tax applicable under section 1(c) and such payment. The tax shall be deducted and withheld upon payment of the winnings by the person making such payment (“payer”). See paragraph (c)(5)(ii) of this section for a special rule relating to the time for making deposits of withheld amounts and filing the return with respect to those amounts. Any person receiving a payment of winnings subject to withholding must furnish the payer a statement as required in paragraph (d) of this section. Payers of winnings subject to withholding must file a return with the Internal Revenue Service and furnish a statement to the payee as required in paragraph (e) of this section. With respect to reporting requirements for certain payments of gambling winnings not subject to withholding, see section 6041 and the regulations thereunder.

    (b) Winnings subject to withholding. (1) In general. Winnings subject to withholding means any payment from—

    (i) A wager placed in a State-conducted lottery (defined in paragraph (c)(2) of this section) but only if the proceeds from the wager exceed $5,000;

    (ii) A wager placed in a sweepstakes, wagering pool, or lottery other than a State-conducted lottery but only if the proceeds from the wager exceed $5,000; or

    (iii) Any other wagering transaction (as defined in paragraph (c)(3) of this section) but only if the proceeds from the wager (A) exceed $5,000 and (B) are at least 300 times as large as the amount of the wager.

    (2) Total proceeds subject to withholding. If proceeds from the wager qualify as winnings subject to withholding, then the total proceeds from the wager, and not merely amounts in excess of $5,000, are subject to withholding.

    (c) Definitions; special rules—(1) Rules for determining amount of proceeds from a wager—(i) In general. The amount of “proceeds from a wager” is the amount paid with respect to the wager, less the amount of the wager.

    (ii) Amount of the wager in the case of horse races, dog races, and jai alai. In the case of a wagering transaction with respect to horse races, dog races, or jai alai, all wagers placed in a single parimutuel pool and represented on a single ticket are aggregated and treated as a single wager for purposes of determining the amount of the wager. A ticket in the case of horse races, dog races, or jai alai is a written or electronic record that the payee must present to collect proceeds from a wager or wagers.

    (iii) Amount paid with respect to a wager—(A) Identical wagers. Amounts paid with respect to identical wagers are treated as paid with respect to a single wager for purposes of calculating the amount of proceeds from a wager. Two or more wagers are identical wagers if winning depends on the occurrence (or non-occurrence) of the same event or events; the wagers are placed with the same payer; and, in the case of horse races, dog races, or jai alai, the wagers are placed in the same parimutuel pool. Wagers may be identical wagers even if the amounts wagered differ as long as the wagers are otherwise treated as identical wagers under this paragraph (c)(1)(iii)(A). Tickets purchased in a lottery generally are not identical wagers, because the designation of each ticket as a winner generally would not be based on the occurrence of the same event, e.g., the drawing of a particular number.

    (B) Non-monetary proceeds. In determining the amount paid with respect to a wager, proceeds which are not money are taken into account at the fair market value.

    (C) Periodic payments. Periodic payments, including installment payments or payments which are to be made periodically for the life of a person, are aggregated for purposes of determining the amount paid with respect to the wager. The aggregate amount of periodic payments to be made for a person's life is based on that person's life expectancy. See §§ 1.72-5 and 1.72-9 of this chapter for rules used in computing the expected return on annuities. For purposes of determining the amount subject to withholding, the first periodic payment shall be reduced by the amount of the wager.

    (4) Certain payments to nonresident aliens or foreign corporations. A payment of winnings that is subject to withholding tax under section 1441(a) (relating to withholding on nonresident aliens) or 1442(a) (relating to withholding on foreign corporations) is not subject to the tax imposed by section 3402(q) and this section if the payer complies with the requirements of withholding, documentation, and information reporting rules of section 1441(a) or 1442(a) and the regulations thereunder. A payment is treated as being subject to withholding tax under section 1441(a) or 1442(a) notwithstanding that the rate of such tax is reduced (even to zero) as may be provided by an applicable treaty with another country. However, a reduced or zero rate of withholding of tax shall not be applied by the payer in lieu of the rate imposed by sections 1441 and 1442 unless the person receiving the winnings has provided to the payer the documentation required by § 1.1441-6 of this chapter to establish entitlement to treaty benefits.

    (d) Statement furnished by payee—(1) In general. Each person who is making a payment subject to withholding under this section must obtain from the payee a statement described in paragraph (d)(2) of this section.

    (2) Contents of statement. (i) Each person who is to receive a payment of winnings subject to withholding under this section must furnish the payer a statement on Form W-2G or 5754 (whichever is applicable) made under the penalties of perjury containing—

    (A) The name, address, and taxpayer identification number of the winner accompanied by a declaration that no other person is entitled to any portion of such payment, or

    (B) The name, address, and taxpayer identification number of the payee and of every person entitled to any portion of such payment.

    (3) If more than one payment of winnings subject to withholding is to be made with respect to a single wager, for example in the case of an annuity, the payee is required to furnish the payer a statement with respect to the first such payment only, provided that such other payments are taken into account in a return required by paragraph (e) of this section.

    (4) Reliance on statement for identical wagers. If the payee furnishes the statement which may be required pursuant to § 1.6011-3 of this chapter (regarding the requirement of a statement from payees of certain gambling winnings), indicating that the payee (and any other persons entitled to a portion of the winnings) is entitled to winnings from identical wagers, as defined in paragraph (c)(1)(iii)(A) of this section, and indicating the amount of such winnings, if any, then the payer may rely upon such statement in determining the total amount of proceeds from the wager under paragraph (c)(1) of this section.

    (e) Return of payer—(1) In general. Every person making payment of winnings for which a statement is required under paragraph (d) of this section shall file a return on Form W-2G with the Internal Revenue Service location designated in the instructions to the form on or before February 28 (March 31 if filed electronically) of the calendar year following the calendar year in which the payment of winnings is made. The return required by this paragraph (e) need not include the statement by the payee required by paragraph (d) of this section and, therefore, need not be signed by the payee, provided such statement is retained by the payer as long as the contents thereof may become material in the administration of any internal revenue law. In addition, the return required by this paragraph (e) need not contain the information required by paragraph (e)(1)(v) of this section provided such information is obtained with respect to the payee and retained by the payer as long as the contents thereof may become material in the administration of any internal revenue law. For payments to more than one winner, a separate Form W-2G, which in no event need be signed by the winner, shall be filed with respect to each such winner. Each Form W-2G shall contain the following:

    (i) The name, address, and employer identification number of the payer;

    (ii) The name, address, and taxpayer identification number of the winner;

    (iii) The date, amount of the payment, and amount withheld;

    (iv) The type of wagering transaction;

    (v) Except with respect to winnings from a wager placed in a State-conducted lottery, a general description of the two types of identification (as described in paragraph (e)(2) of this section), one of which must have the payee's photograph on it (except in the case of tribal member identification cards in certain circumstances as described in paragraph (e)(3) of this section), that the payer relied on to verify the payee's name, address, and taxpayer identification number;

    (vi) The amount of winnings from identical wagers; and

    (vii) Any other information required by the form, instructions, or other applicable guidance published in the Internal Revenue Bulletin.

    (2) Identification. The following items are treated as identification for purposes of paragraph (e)(1)(v) of this section—

    (i) Government-issued identification (for example, a driver's license, passport, social security card, military identification card, tribal member identification card issued by a federally-recognized Indian tribe, or voter registration card) in the name of the payee; and

    (ii) A Form W-9, “Request for Taxpayer Identification Number and Certification,” signed by the payee that includes the payee's name, address, taxpayer identification number, and other information required by the form. A Form W-9 is not acceptable for this purpose if the payee has modified the form (other than pursuant to instructions to the form) or if the payee has deleted the jurat or other similar provisions by which the payee certifies or affirms the correctness of the statements contained on the form.

    (3) Special rule for tribal member identification cards. A tribal member identification card need not contain the payee's photograph to meet the identification requirement described in paragraph (e)(1)(v) of this section if—

    (i) The payee is a member of a federally-recognized Indian tribe;

    (ii) The payee presents the payer with a tribal member identification card issued by a federally-recognized Indian tribe stating that the payee is a member of such tribe; and

    (iii) The payer is a gaming establishment (as described in § 1.6041-10(b)(2)(iv) of this chapter) owned or licensed (in accordance with 25 U.S.C. 2710) by the tribal government that issued the tribal member identification card referred to in paragraph (e)(3)(ii) of this section.

    (4) Transmittal form. Persons making payments of winnings subject to withholding shall use Form 1096 to transmit Forms W-2G to the Internal Revenue Service.

    (5) Furnishing a statement to the payee. Every payer required to make a return under paragraph (e)(1) of this section must also make and furnish to each payee, with respect to each payment of winnings subject to withholding, a written statement that contains the information that is required to be included on the return under paragraph (e)(1) of this section. The payer must furnish the statement to the payee on or before January 31st of the year following the calendar year in which payment of the winnings subject to withholding is made. The statement will be considered furnished to the payee if it is provided to the payee at the time of payment or if it is mailed to the payee on or before January 31st of the year following the calendar year in which payment was made.

    (f) Examples. * * *

    Example 10.

    B places a $15 bet at the cashier window at the racetrack for horse A to win the fifth race at the racetrack that day. After placing the first bet, B gains confidence in horse A's prospects to win and places an additional $40 bet at the cashier window at the racetrack for horse A to win the fifth race, receiving a second ticket for this second bet. Horse A wins the fifth race, and B wins a total of $5,500 (100 to 1 odds) on those bets. The $15 bet and the $40 bet are identical wagers under paragraph (c)(1)(iii)(A) of this section because winning on both bets depended on the occurrence of the same event and the bets are placed in the same parimutuel pool with the same payer. This is true regardless of the fact that the amount of the wager differs in each case.

    B cashes the tickets at different cashier windows. Pursuant to paragraph (d) of this section and § 1.6011-3, B completes a Form W-2G indicating that the amount of winnings is from identical wagers and provides the form to each cashier. The payments by each cashier of $1,500 and $4,000 are less than the $5,000 threshold for withholding, but under paragraph (c)(1)(iii)(A) of this section, identical wagers are treated as paid with respect to a single wager for purposes of determining the proceeds from a wager. The payment is not subject to withholding or reporting because although the proceeds from the wager are $5,445 ($1,500 + $4,000 − $55), the proceeds from the wager are not at least 300 times as great as the amount wagered ($55 × 300 = $16,500).

    Example 11.

    B makes two $1,000 bets in a single “show” pool for the same jai alai game, one bet on Player X to show and one bet on Player Y to show. A show bet is a winning bet if the player comes in first, second, or third in a single game. The bets are placed at the same time at the same cashier window, and B receives a single ticket showing both bets. Player X places second in the game, and Player Y does not place first, second, or third in the game. B wins $8,000 from his bet on Player X. Because winning on both bets does not depend on the occurrence of the same event, the bets are not identical bets under paragraph (c)(1)(iii)(A) of this section. However, pursuant to the rule in paragraph (c)(1)(ii) of this section, the amount of the wager is the aggregate amount of both wagers ($2,000) because the bets were placed in a single parimutuel pool and reflected on a single ticket. The payment is not subject to withholding or reporting because although the proceeds from the wager are $6,000 ($8,000 − $2,000), the proceeds from the wager are not at least 300 times as great as the amount wagered ($2,000 × 300 = $600,000).

    Example 12.

    B bets a total of $120 on a three-dog exacta box bet ($20 for each one of the six combinations played) at the dog racetrack and receives a single ticket reflecting the bet from the cashier. B wins $5,040 from one of the selected combinations. Pursuant to the rule in paragraph (c)(1)(ii) of this section, the amount of the wager is $120, not $20 for the single winning combination of the six combinations played. The payment is not subject to withholding under section 3402(q) because the proceeds from the wager are $4,920 ($5,040 − $120), which is below the section 3402(q) withholding threshold.

    Example 13.

    B makes two $12 Pick 6 bets at the horse racetrack at two different cashier windows and receives two different tickets each representing a single $12 Pick 6 bet. In his two Pick 6 bets, B selects the same horses to win races 1-5 but selects different horses to win race 6. All Pick 6 bets on those races at that racetrack are part of a single parimutuel pool from which Pick 6 winning bets are paid. B wins $5,020 from one of his Pick 6 bets. Pursuant to the rule in paragraph (c)(1)(ii) of this section, the bets are not aggregated for purposes of determining the amount of the wager because the bets are reflected on separate tickets. Assuming that the applicable rate is 25%, the racetrack must deduct and withhold $1,252 (($5,020 − $12) × 25%) because the amounts of the proceeds of $5,008 ($5,020 − $12) is greater than $5,000 and is at least 300 times as great as the amount wagered ($12 × 300 = $3,600). The racetrack also must report B's winnings on Form W-2G pursuant to paragraph (e) of this section and furnish a copy of the Form W-2G to B.

    Example 14.

    C makes two $50 bets in two different parimutuel pools for the same jai alai game. One bet is an “exacta” in which C bets on player M to win and player N to “place”. The other bet is a “trifecta” in which C bets on player M to win, player N to “place,” and player O to “show.” C wins both bets and is paid $2,000 with respect to the bet in the “exacta” pool and $3,100 with respect to the bet in the “trifecta” pool. Under paragraph (c)(1)(iii)(A) of this section, the bets are not identical bets. Under paragraph (c)(1)(ii) of this section, the bets are not aggregated for purposes of determining the amount of the wager for either payment because they are not wagers in the same parimutuel pool. No section 3402(q) withholding is required on either payment because neither payment separately exceeds the $5,000 withholding threshold.

    Example 15.

    C makes two $100 bets for the same dog to win a particular race. C places one bet at the racetrack and one bet at an off-track betting establishment, but the two pools constitute a single pool. C receives separate tickets for each bet. C wins both bets and is paid $4,000 from the racetrack and $4,000 from the off-track betting establishment. Under paragraph (c)(1)(ii) of this section, the bets are not aggregated for purposes of determining the amount of the wager because the wager placed at the racetrack and the wager placed at the off-track betting establishment are reflected on separate tickets, despite being placed in the same parimutuel pool. No section 3402(q) withholding is required because neither payment separately exceeds the $5,000 withholding threshold.

    Example 16.

    C places a $200 Pick 6 bet for a series of races at the racetrack on a particular day and receives a single ticket for the bet. No wager correctly picks all six races that day, so that portion of the pool carries over to the following day. On the following day, C places an additional $200 Pick 6 bet for that day's series of races and receives a new ticket for that bet. C wins $100,000 on the second day. Pursuant to the rule in paragraph (c)(1)(ii) of this section, the bets are on two separate tickets, so C's two Pick 6 bets are not aggregated for purposes of determining the amount of the wager. Assuming that the applicable rate is 25%, the racetrack must deduct and withhold $24,950 (($100,000 − $200) × 25%) because the amount of the proceeds of $99,800 ($100,000 − $200) is greater than $5,000, and is at least 300 times as great as the amount wagered ($200 × 300 = $60,000). The racetrack also must report C's winnings on Form W-2G pursuant to paragraph (e) of this section and furnish a copy of the Form W-2G to C.

    (g) Applicability date. These rules apply to payments made after [the date of publication of the Treasury decision adopting these rules as final regulations in the Federal Register]. For rules that apply to payments made before that date, see 26 CFR 31.3402(q)-1 (revised April 2015).

    Par. 3. Section 31.3406-0 is amended by adding an entry for paragraph (h) to § 31.3406(g)-2 to read as follows:
    § 31.3406-0 Outline of the backup withholding regulations.
    § 31.3406(g)-2 Exception for reportable payments for which backup withholding is otherwise required.

    (h) Effective/applicability date.

    Par. 4. Section 31.3406(g)-2 is amended by revising paragraphs (d)(2) and (3) and adding paragraph (h) to read as follows:
    § 31.3406(g)-2 Exception for reportable payment for which withholding is otherwise required.

    (d) * * *

    (2) Definition of a reportable gambling winning and determination of amount subject to backup withholding. For purposes of withholding under section 3406, a reportable gambling winning is any gambling winning subject to information reporting under section 6041. A gambling winning (other than a winning from bingo, keno, or slot machines) is a reportable gambling winning only if the amount paid with respect to the wager is $600 or more and if the proceeds are at least 300 times as large as the amount wagered. See § 1.6041-10 of this chapter to determine whether a winning from bingo, keno, or slot machines is a reportable gambling winning and thus subject to withholding under section 3406. The amount of a reportable gambling winning is—

    (i) The amount paid with respect to the amount of the wager reduced, at the option of the payer; by

    (ii) The amount of the wager.

    (3) Special rules. For special rules for determining the amount of the wager in a wagering transaction with respect to horse racing, dog racing, and jai alai, or amounts paid with respect to identical wagers, see § 31.3402(q)-1(c).

    (h) Applicability date. The rules apply to reportable gambling winnings paid after [the date of publication of the Treasury decision adopting these rules as final regulations in the Federal Register]. For reportable gambling winnings paid on or before [the date of publication of the Treasury decision adopting these rules as final regulations in the Federal Register], § 31.3406(g)-2 (as contained in 26 CFR part 31, revised April 2015) applies.

    John Dalrymple, Deputy Commissioner for Services and Enforcement.
    [FR Doc. 2016-31579 Filed 12-29-16; 8:45 am] BILLING CODE 4830-01-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 87 and 1068 [EPA-HQ-OAR-2014-0828; FRL-9957-73-OAR] Reconsideration of Finding That Greenhouse Gas Emissions From Aircraft Cause or Contribute to Air Pollution That May Reasonably Be Anticipated To Endanger Public Health and Welfare AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Notice of final action denying petition for reconsideration.

    SUMMARY:

    This action provides notice that the U.S. Environmental Protection Agency (EPA) Administrator, Gina McCarthy, denied a petition for reconsideration of the final Finding that Greenhouse Gas Emissions from Aircraft Cause or Contribute to Air Pollution that May Reasonably Be Anticipated to Endanger Public Health and Welfare, published in the Federal Register on August 15, 2016.

    DATES:

    The EPA took final action to deny the petition for reconsideration on December 21, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Lesley Jantarasami, Office of Atmospheric Programs, Climate Change Division, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Mail Code 6207-A, Washington DC 20460; Telephone number: (202) 343-9990; Email address: [email protected]

    SUPPLEMENTARY INFORMATION:

    I. General Information A. How can I get copies of this document and other related information?

    This Federal Register document, the petition for reconsideration and the EPA's response addressing the petition for reconsideration are available in the docket under Docket ID No. EPA-HQ-OAR-2014-0828.

    Docket. The EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2014-0828. Publicly available docket materials are available either electronically through http://www.regulations.gov or in hard copy at the EPA Docket Center (EPA/DC), EPA WJC West, Room 3334, 1301 Constitution Ave. NW., Washington, DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the Air Docket is (202) 566-1742. This action, the petition for reconsideration and the EPA's response addressing the petition can also be found on the EPA's Web site at https://www.epa.gov/regulations-emissions-vehicles-and-engines/final-rule-finding-greenhouse-gas-emissions-aircraft.

    Electronic access. You may access this Federal Register document electronically from the Government Printing Office under the “Federal Register” listings at FDSys (http://www.thefederalregister.org/fdsys/browse/collection.action?collectionCode=FR).

    II. Judicial Review

    Section 307(b)(1) of the Clean Air Act (CAA) indicates which Federal Court of Appeals have venue over petitions for review of final EPA actions. This section provides, in part, that the petitions for review must be filed in the Court of Appeals for the District of Columbia Circuit if: (i) The agency action consists of “nationally applicable regulations promulgated, or final action taken, by the Administrator;” or (ii) such actions are locally or regionally applicable, if “such action is based on a determination of nationwide scope or effect and if in taking such action the Administrator finds and publishes that such action is based on such a determination.”

    The EPA has determined that its action denying the petition for reconsideration is nationally applicable for purposes of CAA section 307(b)(1) because it affects the final Finding that Greenhouse Gas Emissions from Aircraft Cause or Contribute to Air Pollution that May Reasonably Be Anticipated to Endanger Public Health and Welfare, and that finding triggers the EPA's statutory duty to promulgate aircraft engine emission standards under CAA section 231, which are nationally applicable regulations and for which judicial review will be available only in the U.S. Court of Appeals for the District of Columbia Circuit. Moreover, EPA already determined that the subject finding was nationally applicable, see 81 FR 54422 (Aug. 15, 2016), and that finding has in fact been challenged in the U.S. Court of Appeals for the District of Columbia Circuit. In the alternative, even if this action were considered to be only locally or regionally applicable, the Administrator has determined that it has nationwide scope and effect within the meaning of CAA section 307(b)(1) both because EPA has determined that the final finding has nationwide scope and effect within the meaning of CAA section 307(b)(1), see 81 FR 54422 (Aug. 15, 2016), and because it concerns risks from GHG pollution and contributions to such pollution that occur across the nation.

    Thus, any petition for judicial review of the EPA's decision to deny the petition for reconsideration described in this document must be filed in the U.S. Court of Appeals for the District of Columbia Circuit by February 28, 2017.

    III. Description of Action

    On July 25, 2016, EPA Administrator McCarthy signed the action entitled “Finding that Greenhouse Gas Emissions from Aircraft Cause or Contribute to Air Pollution that May Reasonably Be Anticipated to Endanger Public Health and Welfare.” That action included two findings under section 231(a)(2)(A) of the CAA. These findings were that: (1) Concentrations of six well-mixed greenhouse gases (GHGs) in the atmosphere endanger the public health and welfare of current and future generations (the endangerment finding), and (2) GHGs emitted from certain classes of engines used in certain aircraft 1 are contributing to the air pollution—the mix of those six GHGs in the atmosphere—that endangers public health and welfare (the cause or contribute finding, or contribution finding). The Administrator made these findings using the same definitions of “air pollution” and “air pollutant” as were used in earlier findings under CAA section 202(a)(1) regarding motor vehicle GHG emissions (the 2009 Findings), namely the combined mix of six key well-mixed GHGs: carbon dioxide (CO2), methane, nitrous oxide, hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), and sulfur hexafluoride (SF6). While the 2009 Findings under CAA section 202(a)(1) relate to GHG emissions from new motor vehicles and new motor vehicle engines, these findings under CAA section 231(a)(2)(A) relate to GHG emissions from certain classes of engines used in certain aircraft. These findings were published in the Federal Register on August 15, 2016 (81 FR 54422), and became effective on September 14, 2016 (2016 Findings).

    1 The contribution finding concludes that GHG emissions from certain classes of engines used in “U.S. covered aircraft” contribute to the air pollution that endangers public health and welfare. The finding defines “U.S. covered aircraft” to be subsonic jet aircraft with a maximum takeoff mass (MTOM) greater than 5,700 kilograms and subsonic propeller driven aircraft (e.g., turboprops) with a MTOM greater than 8,618 kilograms. This contribution finding for engines used in U.S. covered aircraft results in the vast majority (89 percent) of total U.S. aircraft GHG emissions being included in this determination.

    The Biogenic CO2 Coalition (Petitioner) submitted a petition dated October 14, 2016 asking the EPA to reconsider the 2016 Findings with respect to the Agency's treatment of biogenic carbon dioxide (CO2) emissions from short-cycle annual herbaceous crops. CAA section 307(d)(7)(B) states that “[o]nly an objection to a rule or procedure which was raised with reasonable specificity during the period for public comment (including any public hearing) may be raised during judicial review. If the person raising an objection can demonstrate to the Administrator that it was impracticable to raise such objection within such time or if the grounds for such objection arose after the period for public comment (but within the time specified for judicial review) and if such objection is of central relevance to the outcome of the rule, the Administrator shall convene a proceeding for reconsideration of the rule and provide the same procedural rights as would have been afforded had the information been available at the time the rule was proposed.”

    The EPA carefully reviewed the petition for reconsideration and evaluated all the information presented on the issues raised, along with information contained in the docket for the 2016 Findings, in reaching a decision on the petition. The EPA has concluded that the petition does not meet the criteria for reconsideration in CAA section 307(d)(7)(B). In a letter to the petitioner, the EPA Administrator, Gina McCarthy, denied the petition for reconsideration. The letter included an enclosure, a Reconsideration Response document entitled “Response to the Biogenic CO2 Coalition's Petition for Reconsideration of the Final Finding that Greenhouse Gas Emissions from Aircraft Cause or Contribute to Air Pollution that May Reasonably Be Anticipated to Endanger Public Health and Welfare,” that articulates in detail the rationale for the EPA's final responses to the petition for reconsideration and the EPA Administrator's denial of that petition. These documents are all available in the docket for this action.

    IV. Conclusion

    For the reasons discussed in the letter to the petitioner and the Reconsideration Response document, the petition to reconsider the final Finding that Greenhouse Gas Emissions from Aircraft Cause or Contribute to Air Pollution that May Reasonably Be Anticipated to Endanger Public Health and Welfare is denied.

    Dated: December 21, 2016. Gina McCarthy, Administrator.
    [FR Doc. 2016-31644 Filed 12-29-16; 8:45 am] BILLING CODE 6560-50-P
    FEDERAL COMMUNICATIONS COMMISSION 47 CFR Parts 1, 2, 15, 25, 30, and 101 [GN Docket No. 14-177, IB Docket Nos. 15-256 and 97-95, WT Docket No. 10-112; Report No. 3065] Petitions for Reconsideration of Action in Rulemaking Proceeding AGENCY:

    Federal Communications Commission.

    ACTION:

    Petition for Reconsideration.

    SUMMARY:

    Petitions for Reconsideration (Petitions) have been filed in the Commission's rulemaking proceeding by Chris Pearson, on behalf of 5G Americas; Donald L. Herman, Jr., on behalf of Adams Telcom, Inc., jointly with Central Texas Communications, Inc., E.N.M.R. Telephone Cooperative, Louisiana Competitive Telecommunications, Inc., and Pine Belt Communications, Inc.; Audrey L. Allison, on behalf of The Boeing Company; Steven K. Berry, on behalf of Competitive Carriers Association; Brian M. Josef, on behalf of CTIA; Giselle Creeser, on behalf of Inmarsat, Inc., jointly with Jennifer A. Manner, on behalf of EchoStar Satellite Operating Corporation and Hughes Network Systems LLC; Rick Chessen, on behalf of NTCA—The Internet & Television Association; Michele C. Farquhar, on behalf of Nextlink Wireless, LLC; Petra Vorwig, on behalf of SES Americom, Inc., jointly with Suzanne Malloy, on behalf of O3b Limited; Tom Stroup, on behalf of Satellite Industry Association; James Reid, on behalf of Telecommunications Industry Association; Steve B. Sharkey, on behalf of T-Mobile USA, Inc.; and Christopher Murphy, on behalf of ViaSat, Inc.

    DATES:

    Oppositions to the Petition must be filed on or before January 17, 2017. Replies to an opposition must be filed on or before January 24, 2017.

    ADDRESSES:

    Federal Communications Commission, 445 12th Street SW., Washington, DC 20554.

    FOR FURTHER INFORMATION CONTACT:

    John Schauble, Wireless Telecommunications Bureau, (202) 418-0797; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    This is a summary of the Commission's document, Report No. 3065, released December 22, 2016. The full text of the Petitions is available for viewing and copying at the FCC Reference Information Center, 445 12th Street SW., Room CY-A257, Washington, DC 20554 or may be accessed online via the Commission's Electronic Comment Filing System at: http://apps.fcc.gov/ecfs/. The Commission will not send a copy of this document pursuant to the Congressional Review Act, 5 U.S.C. 801(a)(1)(A), because this document does not have an impact on any rules of particular applicability.

    Subject: Use of Spectrum Bands Above 24 GHz for Mobile Radio Services, FCC 16-89, published at 81 FR 79894, November 14, 2016, in GN Docket No. 14-177, IB Docket Nos. 15-256 and 97-95, RM-11664, and WT Docket No. 10-112. This document is being published pursuant to 47 CFR 1.429(e). See also 47 CFR 1.4(b)(1) and 1.429(f), (g).

    Number of Petitions Filed: 13.

    Federal Communications Commission. Katura Howard, Federal Register Liaison Officer, Office of the Secretary.
    [FR Doc. 2016-31709 Filed 12-29-16; 8:45 am] BILLING CODE 6712-01-P
    FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 73 [MB Docket Nos. 14-50, 09-182, 07-294, and 04-256; Report No. 3064] Petitions for Reconsideration of Action in Rulemaking Proceeding AGENCY:

    Federal Communications Commission.

    ACTION:

    Petition for Reconsideration.

    SUMMARY:

    Petitions for Reconsideration (Petitions) have been filed in the Commission's rulemaking proceeding by David Oxenford and Kelly Donohue, on behalf of Connoisseur Media, LLC.; Richard J. Bodorff et al., on behalf of Nexstar Broadcasting, Inc.; and Rick Kaplan et al., on behalf of National Association of Broadcasters.

    DATES:

    Oppositions to the Petitions must be filed on or before January 17, 2017. Replies to an opposition must be filed on or before January 24, 2017.

    ADDRESSES:

    Federal Communications Commission, 445 12th Street SW., Washington, DC 20554.

    FOR FURTHER INFORMATION CONTACT:

    Benjamin Arden, Media Bureau, (202) 418-2605; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    This is a summary of the Commission's document, Report No. 3064, released December 21, 2016. The full text of the Petitions is available for viewing and copying at the FCC Reference Information Center, 445 12th Street SW., Room CY-A257, Washington, DC 20554 or may be accessed online via the Commission's Electronic Comment Filing System at: http://apps.fcc.gov/ecfs/. The Commission will not send a copy of this document pursuant to the Congressional Review Act, 5 U.S.C. 801(a)(1)(A), because this document does not have an impact on any rules of particular applicability.

    Subject: 2014 Quadrennial Regulatory Review—Review of the Commission's Broadcast Ownership Rules and Other Rules Adopted Pursuant to Section 202 of the Telecommunications Act of 1996, FCC 16-107, published at 81 FR 76220, November 1, 2016, in MB Docket Nos. 14-50, 09-182, 07-294, and 04-256. This document is being published pursuant to 47 CFR 1.429(e). See also 47 CFR 1.4(b)(1) and 1.429(f), (g).

    Number of Petitions Filed: 3.

    Federal Communications Commission. Katura Howard, Federal Register Liaison Officer, Office of the Secretary.
    [FR Doc. 2016-31708 Filed 12-29-16; 8:45 am] BILLING CODE 6712-01-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 217 [Docket No. 160929897-6897-01] RIN 0648-BG37 Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Russian River Estuary Management Activities AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Proposed rule.

    SUMMARY:

    NMFS has received a request from the Sonoma County Water Agency (SCWA) for authorization to take marine mammals incidental to Russian River estuary management activities in Sonoma County, California, over the course of five years (2017-2022). As required by the Marine Mammal Protection Act (MMPA), NMFS is proposing regulations to govern that take and requests comments on the proposed regulations.

    DATES:

    Comments and information must be received no later than January 30, 2017.

    ADDRESSES:

    You may submit comments on this document, identified by NOAA-NMFS-2016-0163, by any of the following methods:

    Electronic submission: Submit all electronic public comments via the federal e-Rulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2016-0163, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.

    Mail: Submit written comments to Jolie Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East West Highway, Silver Spring, MD 20910.

    Comments regarding any aspect of the collection of information requirement contained in this proposed rule should be sent to NMFS via one of the means provided here and to the Office of Information and Regulatory Affairs, NEOB-10202, Office of Management and Budget, Attn: Desk Office, Washington, DC 20503, [email protected]

    Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous). Attachments to electronic comments will be accepted in Microsoft Word, Excel, or Adobe PDF file formats only.

    FOR FURTHER INFORMATION CONTACT:

    Ben Laws, Office of Protected Resources, NMFS, (301) 427-8401.

    SUPPLEMENTARY INFORMATION:

    Availability

    A copy of SCWA's application and any supporting documents, as well as a list of the references cited in this document, may be obtained online at: www.nmfs.noaa.gov/pr/permits/incidental/construction.htm. In case of problems accessing these documents, please call the contact listed above (see FOR FURTHER INFORMATION CONTACT).

    National Environmental Policy Act (NEPA)

    NMFS prepared an Environmental Assessment (EA; 2010) and associated Finding of No Significant Impact (FONSI) in accordance with NEPA and the regulations published by the Council on Environmental Quality. These documents are posted at the aforementioned Internet address. Information in SCWA's application, NMFS's EA (2010), and this notice collectively provide the environmental information related to proposed issuance of these regulations for public review and comment. We will review all comments submitted in response to this notice as we complete the NEPA process, including a decision of whether the existing EA and FONSI provide adequate analysis related to the potential environmental effects of issuing an incidental take authorization to SCWA, prior to a final decision on the request.

    Purpose and Need for Regulatory Action

    This proposed rule, to be issued under the authority of the Marine Mammal Protection Act (MMPA) (16 U.S.C. 1361 et seq.), would establish a framework for authorizing the take of marine mammals incidental to SCWA's estuary management activities at the mouth of the Russian River in Sonoma County, CA. SCWA proposes to manage the naturally-formed barrier beach at the mouth of the Russian River in order to minimize potential for flooding adjacent to the estuary and to enhance habitat for juvenile salmonids, as well as to conduct biological and physical monitoring of the barrier beach and estuary. Breaching of the naturally-formed barrier beach at the mouth of the Russian River requires the use of heavy equipment and increased human presence, and monitoring in the estuary requires the use of small boats.

    We received an application from SCWA requesting five-year regulations and authorization to take multiple species of marine mammals. Take would occur by Level B harassment incidental to estuary management activities due to disturbance of hauled pinnipeds. The regulations would be valid from 2017 to 2022. Please see “Background” below for definitions of harassment.

    Legal Authority for the Proposed Action

    Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1371(a)(5)(A)) directs the Secretary of Commerce to allow, upon request, the incidental, but not intentional taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region for up to five years if, after notice and public comment, the agency makes certain findings and issues regulations that set forth permissible methods of taking pursuant to that activity, as well as monitoring and reporting requirements. Section 101(a)(5)(A) of the MMPA and the implementing regulations at 50 CFR part 216, subpart I provide the legal basis for issuing this proposed rule containing five-year regulations, and for any subsequent Letters of Authorization. As directed by this legal authority, this proposed rule contains mitigation, monitoring, and reporting requirements.

    Summary of Major Provisions Within the Proposed Rule

    The following provides a summary of some of the major provisions within the proposed rulemaking for SCWA estuary management activities. We have preliminarily determined that SCWA's adherence to the proposed mitigation, monitoring, and reporting measures listed below would achieve the least practicable adverse impact on the affected marine mammals. They include:

    • Measures to minimize the number and intensity of incidental takes during sensitive times of year and to minimize the duration of disturbances.

    • Measures designed to eliminate startling reactions.

    • Eliminating or altering management activities on the beach when pups are present, and by setting limits on the frequency and duration of events during pupping season.

    Background

    Paragraphs 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1371 (a)(5)(A) and (D)) direct the Secretary of Commerce to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are issued or, if the taking is limited to harassment, a notice of a proposed authorization is provided to the public for review.

    An authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s); will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant); and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth. NMFS has defined “negligible impact” in 50 CFR 216.103 as “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”

    Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as: any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).

    Summary of Request

    On September 2, 2016, we received an adequate and complete request from SCWA for authorization to take marine mammals incidental to estuary management activities. On September 20, 2016 (81 FR 64440), we published a notice of receipt of SCWA's application in the Federal Register, requesting comments and information related to the request for 30 days. We did not receive any comments. SCWA provided a revised draft incorporating minor revisions on November 1, 2016.

    SCWA proposes to manage the naturally-formed barrier beach at the mouth of the Russian River in order to minimize potential for flooding adjacent to the estuary and to enhance habitat for juvenile salmonids, as well as to conduct biological and physical monitoring of the barrier beach and estuary. Flood control-related breaching of the barrier beach at the mouth of the river may include artificial breaches, as well as construction and maintenance of a lagoon outlet channel. The latter activity, an alternative management technique conducted to mitigate impacts of flood control on rearing habitat for Endangered Species Act (ESA)-listed salmonids, occurs only from May 15 through October 15 (hereafter, the “lagoon management period”). Artificial breaching and monitoring activities may occur at any time during the period of validity of the proposed regulations. The requested regulations would be valid for 5 years, from April 21, 2017, through April 20, 2022.

    Breaching of the naturally-formed barrier beach at the mouth of the Russian River requires the use of heavy equipment (e.g., bulldozer, excavator) and increased human presence, and monitoring in the estuary requires the use of small boats. As a result, pinnipeds hauled out on the beach or at peripheral haul-outs in the estuary may exhibit behavioral responses that indicate incidental take by Level B harassment under the MMPA. Species known from the haul-out at the mouth of the Russian River or from peripheral haul-outs, and therefore anticipated to be taken incidental to the specified activity, include the harbor seal (Phoca vitulina richardii), California sea lion (Zalophus californianus), and northern elephant seal (Mirounga angustirostris).

    Prior to this request for incidental take regulations and a subsequent Letter of Authorization (LOA), we issued seven consecutive incidental harassment authorizations (IHA) to SCWA for incidental take associated with the same ongoing activities. SCWA was first issued an IHA, valid for a period of one year, effective on April 1, 2010 (75 FR 17382), and was subsequently issued one-year IHAs for incidental take associated with the same activities, effective on April 21, 2011 (76 FR 23306), April 21, 2012 (77 FR 24471), April 21, 2013 (78 FR 23746), April 21, 2014 (79 FR 20180), April 21, 2015 (80 FR 24237), and April 21, 2016 (81 FR 22050).

    Description of the Specified Activity Overview

    The proposed action involves management of the estuary to prevent flooding while preventing adverse modification to critical habitat for ESA-listed salmonids. Requirements related to the ESA are described in further detail below. During the lagoon management period, this involves construction and maintenance of a lagoon outlet channel that would facilitate formation of a perched lagoon. A perched lagoon, which is an estuary closed to tidal influence in which water surface elevation is above mean high tide, would reduce flooding while maintaining beneficial conditions for juvenile salmonids. Additional breaches of the barrier beach may be conducted for the sole purpose of reducing flood risk. SCWA's proposed activity was described in detail in our notice of proposed authorization prior to the 2011 IHA (76 FR 14924; March 18, 2011); please see that document for a detailed description of SCWA's estuary management activities. Aside from minor additions to SCWA's biological and physical estuary monitoring measures, the specified activity remains the same as that described in the 2011 document.

    Dates and Duration

    The specified activity may occur at any time during the five-year period of validity for these proposed regulations (April 21, 2017 through April 20, 2022), although construction and maintenance of a lagoon outlet channel would occur only during the lagoon management period. In addition, there are certain restrictions placed on SCWA during the harbor seal pupping season. These, as well as periodicity and frequency of the specified activities, are described in further detail below.

    Specified Geographical Region

    The estuary is located about 97 kilometers (km) (60 miles (mi)) northwest of San Francisco in Sonoma County, near Jenner, California (see Figure 1 of SCWA's application). The Russian River watershed encompasses 3,847 km2 (1,485 mi2) in Sonoma, Mendocino, and Lake Counties. The mouth of the Russian River is located at Goat Rock State Beach (see Figure 2 of SCWA's application); the estuary extends from the mouth upstream approximately 10 to 11 km (6-7 mi) between Austin Creek and the community of Duncans Mills (Heckel and McIver, 1994).

    Detailed Description of Activities

    Within the Russian River watershed, the U.S. Army Corps of Engineers (Corps), SCWA, and the Mendocino County Russian River Flood Control and Water Conservation Improvement District (District) operate and maintain Federal facilities and conduct activities in addition to the estuary management, including flood control, water diversion and storage, instream flow releases, hydroelectric power generation, channel maintenance, and fish hatchery production. The Corps, SCWA, and the District conducted these activities for many years before salmonid species in the Russian River were protected under the ESA. Upon determination that these actions were likely to affect ESA-listed salmonids, as well as designated critical habitat for these species, formal consultation under section 7 of the ESA was initiated. In 2008, NMFS issued a Biological Opinion (BiOp) for Water Supply, Flood Control Operations, and Channel Maintenance conducted by the Corps, SCWA, and the District in the Russian River watershed (NMFS, 2008). This BiOp found that the activities—including SCWA's estuary management activities—authorized by the Corps and undertaken by SCWA and the District, if continued in a manner similar to recent historic practices, were likely to jeopardize the continued existence of ESA-listed salmonids and were likely to adversely modify critical habitat.

    If a project is found to jeopardize a species or adversely modify its critical habitat, NMFS must develop and recommend a non-jeopardizing Reasonable and Prudent Alternative (RPA) to the proposed project, in coordination with the federal action agency and any applicant. A component of the RPA described in the 2008 BiOp requires SCWA to collaborate with NMFS and modify their estuary water level management in order to reduce marine influence (i.e., high salinity and tidal inflow) and promote a higher water surface elevation in the estuary in order to enhance the quality of rearing habitat for juvenile salmonids. A program of potential incremental steps prescribed to reach that goal includes adaptive management of the outlet channel. SCWA is also required to monitor the response of water quality, invertebrate production, and salmonids in and near the estuary to water surface elevation management in the estuary-lagoon system.

    The analysis contained in the BiOp found that maintenance of lagoon conditions was necessary only for the lagoon management period. See NMFS's BiOp (2008) for details of that analysis. As a result of that determination, there are three components to SCWA's estuary management activities: (1) Lagoon outlet channel management, during the lagoon management period only, required to accomplish the dual purposes of flood risk abatement and maintenance of juvenile salmonid habitat; (2) traditional artificial breaching, with the sole goal of flood risk abatement; and (3) physical and biological monitoring. The latter activity, physical and biological monitoring, will remain the same as in past years and as described in our 2015 notice of proposed authorization (80 FR 14073; March 18, 2015). Please see the previously referenced Federal Register notice (76 FR 14924; March 18, 2011) for detailed discussion of lagoon outlet channel management, artificial breaching, and other monitoring activities.

    NMFS's BiOp determined that salmonid estuarine habitat may be improved by managing the Russian River estuary as a perched, freshwater lagoon and, therefore, stipulates as an RPA to existing conditions that the estuary be managed to achieve such conditions between May 15th and October 15th. In recognition of the complexity and uncertainty inherent in attempting to manage conditions in a dynamic beach environment, the BiOp stipulates that the estuarine water surface elevation RPA be managed adaptively, meaning that it should be planned, implemented, and then iteratively refined based on experience gained from implementation. The first phase of adaptive management, which has been implemented since 2010, is limited to outlet channel management (ESA, 2015).

    Proposed Mitigation

    In order to issue an incidental take authorization (ITA) under section 101(a)(5)(A) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, “and other means of effecting the least practicable adverse impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for subsistence uses.” NMFS's implementing regulations require applicants for ITAs to include information about the availability and feasibility (economic and technological) of equipment, methods, and manner of conducting such activity or other means of effecting the least practicable adverse impact upon the affected species or stocks and their habitat (50 CFR 216.104(a)(11)).

    SCWA has proposed to continue the following mitigation measures, as implemented during the previous ITAs, designed to minimize impact to affected species and stocks:

    • SCWA crews would cautiously approach (e.g., walking slowly with limited arm movement and minimal sound) the haul-out ahead of heavy equipment to minimize the potential for sudden flushes, which may result in a stampede—a particular concern during pupping season.

    • SCWA staff would avoid walking or driving equipment through the seal haul-out.

    • Crews on foot would make an effort to be seen by seals from a distance, if possible, rather than appearing suddenly, again preventing sudden flushes.

    • During breaching events, all monitoring would be conducted from the overlook on the bluff along Highway 1 adjacent to the haul-out in order to minimize potential for harassment.

    • A water level management event may not occur for more than two consecutive days unless flooding threats cannot be controlled.

    In addition, SCWA proposes to continue mitigation measures specific to pupping season (March 15-June 30), as implemented in the previous ITAs:

    • SCWA will maintain a one week no-work period between water level management events (unless flooding is an immediate threat) to allow for an adequate disturbance recovery period. During the no-work period, equipment must be removed from the beach.

    • If a pup less than one week old is on the beach where heavy machinery would be used or on the path used to access the work location, the management action will be delayed until the pup has left the site or the latest day possible to prevent flooding while still maintaining suitable fish rearing habitat. In the event that a pup remains present on the beach in the presence of flood risk, SCWA would consult with NMFS to determine the appropriate course of action. SCWA will coordinate with the locally established seal monitoring program (Stewards' Seal Watch) to determine if pups less than one week old are on the beach prior to a breaching event.

    • Physical and biological monitoring will not be conducted if a pup less than one week old is present at the monitoring site or on a path to the site.

    For all activities, personnel on the beach would include up to two equipment operators, three safety team members on the beach (one on each side of the channel observing the equipment operators, and one at the barrier to warn beach visitors away from the activities), and one safety team member at the overlook on Highway 1 above the beach. Occasionally, there would be two or more additional people (SCWA staff or regulatory agency staff) on the beach to observe the activities. SCWA staff would be followed by the equipment, which would then be followed by an SCWA vehicle (typically a small pickup truck, the vehicle would be parked at the previously posted signs and barriers on the south side of the excavation location). Equipment would be driven slowly on the beach and care would be taken to minimize the number of shut-downs and start-ups when the equipment is on the beach. All work would be completed as efficiently as possible, with the smallest amount of heavy equipment possible, to minimize disturbance of seals at the haul-out. Boats operating near river haul-outs during monitoring would be kept within posted speed limits and driven as far from the haul-outs as safely possible to minimize flushing seals.

    We have carefully evaluated SCWA's proposed mitigation measures and considered a range of other measures in the context of ensuring that we prescribed the means of effecting the least practicable adverse impact on the affected marine mammal species and stocks and their habitat. Our evaluation of potential measures included consideration of the following factors in relation to one another: (1) The manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts to marine mammals, (2) the proven or likely efficacy of the specific measure to minimize adverse impacts as planned; and (3) the practicability of the measure for applicant implementation.

    Any mitigation measure(s) we prescribe should be able to accomplish, have a reasonable likelihood of accomplishing (based on current science), or contribute to the accomplishment of one or more of the general goals listed below:

    (1) Avoidance or minimization of injury or death of marine mammals wherever possible (goals 2, 3, and 4 may contribute to this goal).

    (2) A reduction in the number (total number or number at biologically important time or location) of individual marine mammals exposed to stimuli expected to result in incidental take (this goal may contribute to 1, above, or to reducing takes by behavioral harassment only).

    (3) A reduction in the number (total number or number at a biologically important time or location) of times any individual marine mammal would be exposed to stimuli expected to result in incidental take (this goal may contribute to 1, above, or to reducing takes by behavioral harassment only).

    (4) A reduction in the intensity of exposure to stimuli expected to result in incidental take (this goal may contribute to 1, above, or to reducing the severity of behavioral harassment only).

    (5) Avoidance or minimization of adverse effects to marine mammal habitat, paying particular attention to the prey base, blockage or limitation of passage to or from biologically important areas, permanent destruction of habitat, or temporary disturbance of habitat during a biologically important time.

    (6) For monitoring directly related to mitigation, an increase in the probability of detecting marine mammals, thus allowing for more effective implementation of the mitigation.

    Based on our evaluation of SCWA's proposed measures, we have preliminarily determined that the proposed mitigation measures provide the means of effecting the least practicable adverse impact on marine mammal species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.

    Description of Marine Mammals in the Area of the Specified Activity

    Harbor seals are the most common species inhabiting the haul-out at the mouth of the Russian River (Jenner haul-out) and fine-scale local abundance data for harbor seals have been recorded extensively since 1972. California sea lions and northern elephant seals have also been observed infrequently in the project area. In addition to the primary Jenner haul-out, there are eight peripheral haul-outs nearby (see Figure 1 of SCWA's application). These include North Jenner and Odin Cove to the north; Pocked Rock, Kabemali, and Rock Point to the south; and Penny Logs, Patty's Rock, and Chalanchawi upstream within the estuary.

    This section provides summary information regarding local occurrence of these species. We have reviewed SCWA's detailed species descriptions, including life history information, for accuracy and completeness and refer the reader to Sections 3 and 4 of SCWA's application instead of reprinting the information here. Please also see NMFS Stock Assessment Reports, which may be accessed online at www.nmfs.noaa.gov/pr/sars/species.htm.

    Harbor Seals

    Harbor seals inhabit coastal and estuarine waters and shoreline areas of the Northern Hemisphere from temperate to polar regions. The eastern North Pacific subspecies is found from Baja California north to the Aleutian Islands and into the Bering Sea. Multiple lines of evidence support the existence of geographic structure among harbor seal populations from California to Alaska (Carretta et al., 2016). However, because stock boundaries are difficult to meaningfully draw from a biological perspective, three separate harbor seal stocks are recognized for management purposes along the west coast of the continental U.S.: (1) Inland waters of Washington, (2) outer coast of Oregon and Washington, and (3) California (Carretta et al., 2016). Placement of a stock boundary at the California-Oregon border is not based on biology but is considered a political and jurisdictional convenience (Carretta et al., 2016). In addition, harbor seals may occur in Mexican waters, but these animals are not considered part of the California stock. Only the California stock is expected to be found in the project area.

    California harbor seals are not protected under the ESA or listed as depleted under the MMPA, and are not considered a strategic stock under the MMPA because annual human-caused mortality (43) is significantly less than the calculated potential biological removal (PBR; 1,641) (Carretta et al., 2016). The population appears to be stabilizing at what may be its carrying capacity and the fishery mortality is declining. The best abundance estimate of the California stock of harbor seals is 30,968 and the minimum population size of this stock is 27,348 individuals (Carretta et al., 2016).

    Harbor seal pupping normally occurs at the Russian River from March until late June, and sometimes into early July. The Jenner haul-out is the largest in Sonoma County. A substantial amount of monitoring effort has been conducted at the Jenner haul-out and surrounding areas. Concerned local residents formed the Stewards' Seal Watch Public Education Program in 1985 to educate beach visitors and monitor seal populations. State Parks Volunteer Docents continue this effort towards safeguarding local harbor seal habitat. On weekends during the pupping and molting season (approximately March-August), volunteers conduct public outreach and record the numbers of visitors and seals on the beach, other marine mammals observed, and the number of boats and kayaks present.

    Ongoing monthly seal counts at the Jenner haul-out were begun by J. Mortenson in January 1987, with additional nearby haul-outs added to the counts thereafter. In addition, local resident E. Twohy began daily observations of seals and people at the Jenner haul-out in November 1989. These datasets note whether the mouth at the Jenner haul-out was opened or closed at each observation, as well as various other daily and annual patterns of haul-out usage (Mortenson and Twohy, 1994). In 2009, SCWA began regular baseline monitoring of the haul-out as a component of its estuary management activity. Table 1 shows average daily numbers of seals observed at the mouth of the Russian River from 1993-2005 and from 2009-15.

    Table 1—Average Daily Number of Seals Observed at Russian River Mouth for Each Month, 1993-2005 and 2009-15 Year Jan. Feb. Mar. Apr. May Jun. Jul. Aug. Sep. Oct. Nov. Dec. 1993 140 219 269 210 203 238 197 34 8 38 78 163 1994 138 221 243 213 208 212 246 98 26 31 101 162 1995 133 270 254 261 222 182 216 74 37 24 38 148 1996 144 175 261 247 157 104 142 65 17 29 76 139 1997 154 177 209 188 154 119 186 58 20 29 30 112 1998 119 151 192 93 170 213 232 53 33 21 93 147 1999 161 170 215 210 202 128 216 98 57 20 74 123 2000 151 185 240 180 158 245 256 63 46 50 86 127 2001 155 189 161 168 135 212 275 75 64 20 127 185 2002 117 12 20 154 134 213 215 89 43 26 73 126 2003 1 26 161 164 222 282 100 43 51 109 116 2004 2 5 39 180 202 318 307 35 40 47 68 61 2005 0 7 42 222 220 233 320 145 Mean, 1993-2005 118 137 167 191 179 203 238 76 36 32 79 134 2009 219 117 17 22 96 80 2010 66 84 129 136 109 136 267 111 59 25 89 26 2011 116 92 162 124 128 145 219 98 31 53 92 48 2012 108 74 115 169 164 166 156 128 100 71 137 51 2013 51 108 158 112 162 139 411 175 77 58 34 94 2014 98 209 243 129 145 156 266 134 53 15 27 172 2015 113 171 145 177 153 219 373 120 48 33 49 138 Mean, 2011-15 1 99 131 165 141 151 164 282 133 62 48 68 98 Data from 1993-2005 adapted from Mortenson and Twohy (1994) and E. Twohy (unpublished data). Data from 2009-15 collected by SCWA. Months represented by dash indicate periods where data were missing or incomplete. 1 Mean calculated as a weighted average to account for unequal sample sizes between years. See Table 4 of SCWA's application.

    The number of seals present at the Jenner haul-out generally declines during bar-closed conditions (Mortenson, 1996). SCWA's pinniped monitoring efforts from 1996 to 2000 focused on artificial breaching activities and their effects on the Jenner haul-out. Seal counts and disturbances were recorded from one to two days prior to breaching, the day of breaching, and the day after breaching (MSC, 1997, 1998, 1999, 2000; SCWA and MSC, 2001). In each year, the trend observed was that harbor seal numbers generally declined during a beach closure and increased the day following an artificial breaching event. Heckel and McIver (1994) speculated that the loss of easy access to the haul-out and ready escape to the sea during bar-closed conditions may account for the lower numbers. Table 2 shows average daily seal counts recorded during SCWA monitoring of breaching events from 2009-15, representing bar-closed conditions, when seal numbers decline.

    Table 2—Average Number of Harbor Seals Observed at the Mouth of the Russian River During Breaching Events [i.e., bar-closed conditions—by Month] Year Jan. Feb. Mar. Apr. May Jun. Jul. Aug. Sep. Oct. Nov. Dec. 2009-15 49 75 133 99 80 98 117 17 1 30 28 32 59 1 No estuary management events occurred; data from earlier monitoring effort (1996-2000).

    Mortenson (1996) observed that pups were first seen at the Jenner haul-out in late March, with maximum counts in May. In this study, pups were not counted separately from other age classes at the haul-out after August due to the difficulty in discriminating pups from small yearlings. From 1989 to 1991, Hanson (1993) observed that pupping began at the Jenner haul-out in mid-April, with a maximum number of pups observed during the first two weeks of May. This corresponds with the peaks observed at Point Reyes, where the first viable pups are born in March and the peak is the last week of April to early May (SCWA, 2014). Based on this information, pupping season at the Jenner haul-out is conservatively defined here as March 15 to June 30.

    California Sea Lions

    California sea lions range from the Gulf of California north to the Gulf of Alaska, with breeding areas located in the Gulf of California, western Baja California, and southern California. Five genetically distinct geographic populations have been identified: (1) Pacific Temperate, (2) Pacific Subtropical, (3) Southern Gulf of California, (4) Central Gulf of California and (5) Northern Gulf of California (Schramm et al., 2009). Rookeries for the Pacific Temperate population are found within U.S. waters and just south of the U.S.-Mexico border, and animals belonging to this population may be found from the Gulf of Alaska to Mexican waters off Baja California. Animals belonging to other populations (e.g., Pacific Subtropical) may range into U.S. waters during non-breeding periods. For management purposes, a stock of California sea lions comprising those animals at rookeries within the U.S. is defined (i.e., the U.S. stock of California sea lions) (Carretta et al., 2016). Pup production at the Coronado Islands rookery in Mexican waters is considered an insignificant contribution to the overall size of the Pacific Temperate population (Lowry and Maravilla-Chavez, 2005).

    California sea lions are not protected under the ESA or listed as depleted under the MMPA. Total annual human-caused mortality (389) is substantially less than the PBR (estimated at 9,200); therefore, California sea lions are not considered a strategic stock under the MMPA. The best abundance estimate of the U.S. stock of California sea lions is 296,750 and the minimum population size of this stock is 153,337 individuals (Carretta et al., 2016).

    Beginning in January 2013, elevated strandings of California sea lion pups were observed in southern California, with live sea lion strandings nearly three times higher than the historical average. Findings to date indicate that a likely contributor to the large number of stranded, malnourished pups was a change in the availability of sea lion prey for nursing mothers, especially sardines. Although the pups showed signs of some viruses and infections, findings indicate that this event was not caused by disease or a single infectious agent but by the lack of high quality, close-by food sources for nursing mothers. Several different kinds of one sort of virus (astroviruses, including some new species of astrovirus) were identified in a high percentage of the samples; however, the importance of this finding is still under investigation. The causes and mechanisms of this remain under investigation (www.nmfs.noaa.gov/pr/health/mmume/californiasealions2013.htm; accessed December 6, 2016).

    Solitary California sea lions have occasionally been observed at or in the vicinity of the Russian River estuary (MSC, 1999, 2000), in all months of the year except June. Male California sea lions are occasionally observed hauled out at or near the Russian River mouth in most years: August 2009, January and December 2011, January 2012, December 2013, February 2014, and February and April 2015. Other individuals were observed in the surf at the mouth of the river or swimming inside the estuary. Juvenile sea lions were observed during the summer of 2009 at the Patty's Rock haul-out, and some sea lions were observed during monitoring of peripheral haul-outs in October 2009. The occurrence of individual California sea lions in the action area may occur year-round, but is infrequent and sporadic.

    Northern Elephant Seals

    Northern elephant seals gather at breeding areas, located primarily on offshore islands of Baja California and California, from approximately December to March before dispersing for feeding. Males feed near the eastern Aleutian Islands and in the Gulf of Alaska, while females feed at sea south of 45 °N (Stewart and Huber, 1993; Le Boeuf et al., 1993). Adults then return to land between March and August to molt, with males returning later than females, before dispersing again to their respective feeding areas between molting and the winter breeding season. Populations of northern elephant seals in the U.S. and Mexico are derived from a few tens or hundreds of individuals surviving in Mexico after being nearly hunted to extinction (Stewart et al., 1994). Given the recent derivation of most rookeries, no genetic differentiation would be expected. Although movement and genetic exchange continues between rookeries, most elephant seals return to their natal rookeries when they start breeding (Huber et al., 1991). The California breeding population is now demographically isolated from the Baja California population and is considered to be a separate stock.

    Northern elephant seals are not protected under the ESA or listed as depleted under the MMPA. Total annual human-caused mortality (8.8) is substantially less than the PBR (estimated at 4,882); therefore, northern elephant seals are not considered a strategic stock under the MMPA. The best abundance estimate of the California breeding population of northern elephant seals is 179,000 and the minimum population size of this stock is 81,368 individuals (Carretta et al., 2016).

    Censuses of pinnipeds at the mouth of the Russian River have been taken at least semi-monthly since 1987. Elephant seals were noted from 1987-95, with one or two elephant seals typically counted during May censuses, and occasional records during the fall and winter (Mortenson and Follis, 1997). A single, tagged northern elephant seal sub-adult was present at the Jenner haul-out from 2002-07. This individual seal, which was observed harassing harbor seals also present at the haul-out, was generally present during molt and again from late December through March. A single juvenile elephant seal was observed at the Jenner haul-out in June 2009 and, in recent years, a sub-adult seal was observed in late summer of 2013-14. The occurrence of individual northern elephant seals in the action area has generally been infrequent and sporadic in the past ten years.

    Potential Effects of the Specified Activity on Marine Mammals and Their Habitat

    This section includes a summary and discussion of the ways that components of the specified activity may impact marine mammals and their habitat. The “Estimated Take by Incidental Harassment” section later in this document will include a quantitative analysis of the number of incidents of take expected to occur incidental to this activity. The “Negligible Impact Analysis” section will include an analysis of how this specific activity will impact marine mammals and will consider the content of this section, the “Estimated Take by Incidental Harassment” section, and the “Proposed Mitigation” section, to draw conclusions regarding the likely impacts of these activities on the reproductive success or survivorship of individuals and from that on the affected marine mammal populations or stocks.

    A significant body of monitoring data exists for pinnipeds at the mouth of the Russian River. In addition, pinnipeds have co-existed with regular estuary management activity for decades, as well as with regular human use activity at the beach, and are likely habituated to human presence and activity. Nevertheless, SCWA's estuary management activities have the potential to disturb pinnipeds present on the beach or at peripheral haul-outs in the estuary. During breaching operations, past monitoring has revealed that some or all of the seals present typically move or flush from the beach in response to the presence of crew and equipment, though some may remain hauled-out. No stampeding of seals—a potentially dangerous occurrence in which large numbers of animals succumb to mass panic and rush away from a stimulus—has been documented since SCWA developed protocols to prevent such events in 1999. While it is likely impossible to conduct required estuary management activities without provoking some response in hauled-out animals, precautionary mitigation measures, described later in this document, ensure that animals are gradually apprised of human approach. Under these conditions, seals typically exhibit a continuum of responses, beginning with alert movements (e.g., raising the head), which may then escalate to movement away from the stimulus and possible flushing into the water. Flushed seals typically re-occupy the haul-out within minutes to hours of the stimulus.

    In the absence of appropriate mitigation measures, it is possible that pinnipeds could be subject to injury, serious injury, or mortality, likely through stampeding or abandonment of pups. However, based on a significant body of site-specific data, harbor seals are unlikely to sustain any harassment that may be considered biologically significant. Individual animals would, at most, flush into the water in response to maintenance activities but may also simply become alert or move across the beach away from equipment and crews. During 2013, SCWA observed that harbor seals are less likely to flush from the beach when the primary aggregation of seals is north of the breaching activity (please refer to Figure 2 of SCWA's application), meaning that personnel and equipment are not required to pass the seals. Four artificial breaching events were implemented in 2013, with two of these events occurring north of the primary aggregation and two to the south (at approximately 250 and 50 m distance) (SCWA, 2014). In both of the former cases, all seals present eventually flushed to the water, but when breaching activity remained to the south of the haul-out, only 11 and 53 percent of seals, respectively, were flushed.

    California sea lions and northern elephant seals have been observed as less sensitive to stimulus than harbor seals during monitoring at numerous other sites. For example, monitoring of pinniped disturbance as a result of abalone research in the Channel Islands showed that while harbor seals flushed at a rate of 69 percent, California sea lions flushed at a rate of only 21 percent. The rate for elephant seals declined to 0.1 percent (VanBlaricom, 2010). In the event that either of these species is present during management activities, they would be expected to display a minimal reaction to maintenance activities—less than that expected of harbor seals.

    Although the Jenner haul-out is not known as a primary pupping beach, pups have been observed during the pupping season; therefore, we have evaluated the potential for injury, serious injury, or mortality to pups. There is a lack of published data regarding pupping at the mouth of the Russian River, but SCWA monitors have observed pups on the beach. No births were observed during recent monitoring, but may be inferred based on signs indicating pupping (e.g., blood spots on the sand, birds consuming possible placental remains). Pup injury or mortality would be most likely to occur in the event of extended separation of a mother and pup, or trampling in a stampede. As discussed previously, no stampedes have been recorded since development of appropriate protocols in 1999. Any California sea lions or northern elephant seals present would be independent juveniles or adults; therefore, analysis of impacts on pups is not relevant for those species.

    Similarly, the period of mother-pup bonding, critical time needed to ensure pup survival and maximize pup health, is not expected to be impacted by estuary management activities. Harbor seal pups are extremely precocious, swimming and diving immediately after birth and throughout the lactation period, unlike most other phocids which normally enter the sea only after weaning (Lawson and Renouf, 1985; Cottrell et al., 2002; Burns et al., 2005). Lawson and Renouf (1987) investigated harbor seal mother-pup bonding in response to natural and anthropogenic disturbance. In summary, they found that the most critical bonding time is within minutes after birth. As described previously, the peak of pupping season is typically concluded by mid-May, when the lagoon management period begins. As such, it is expected that mother-pup bonding would likely be concluded as well. The number of management events during the months of March and April has been relatively low in the past, and the breaching activities occur in a single day over several hours. In addition, mitigation measures described later in this document further reduce the likelihood of any impacts to pups, whether through injury or mortality or interruption of mother-pup bonding (which may lead to abandonment).

    In summary, and based on extensive monitoring data, we believe that impacts to hauled-out pinnipeds during estuary management activities would be behavioral harassment of limited duration (i.e., less than one day) and limited intensity (i.e., temporary flushing at most). Stampeding, and therefore injury or mortality, is not expected—nor been documented—in the years since appropriate protocols were established (see “Mitigation” for more details). Further, the continued, and increasingly heavy (see SCWA's monitoring reports), use of the haul-out despite decades of breaching events indicates that abandonment of the haul-out is unlikely.

    Anticipated Effects on Marine Mammal Habitat

    The purposes of the estuary management activities are to improve summer rearing habitat for juvenile salmonids in the Russian River estuary and/or to minimize potential flood risk to properties adjacent to the estuary. These activities would result in temporary physical alteration of the Jenner haul-out, but are essential to conserving and recovering endangered salmonid species, as prescribed by the BiOp. These salmonids are themselves prey for pinnipeds. In addition, with barrier beach closure, seal usage of the beach haul-out declines, and the three nearby river haul-outs may not be available for usage due to rising water surface elevations. Breaching of the barrier beach, subsequent to the temporary habitat disturbance, likely increases suitability and availability of habitat for pinnipeds. Biological and water quality monitoring would not physically alter pinniped habitat. Please see the previously referenced Federal Register notice (76 FR 14924; March 18, 2011) for a more detailed discussion of anticipated effects on habitat.

    During SCWA's pinniped monitoring associated with artificial breaching activities from 1996 to 2000, the number of harbor seals hauled out declined when the barrier beach closed and then increased the day following an artificial breaching event (MSC, 1997, 1998, 1999, and 2000; SCWA and MSC, 2001). This response to barrier beach closure followed by artificial breaching has remained consistent in recent years and is anticipated to continue. However, it is possible that the number of pinnipeds using the haul-out could decline during the extended lagoon management period, when SCWA would seek to maintain a shallow outlet channel rather than the deeper channel associated with artificial breaching. Collection of baseline information during the lagoon management period is included in the monitoring requirements described later in this document. SCWA's previous monitoring, as well as Twohy's daily counts of seals at the sandbar (Table 1) indicate that the number of seals at the haul-out declines from August to October, so management of the lagoon outlet channel (and managing the sandbar as a summer lagoon) would have little effect on haul-out use during the latter portion of the lagoon management period. The early portion of the lagoon management period coincides with the pupping season. Past monitoring during this period, which represents some of the longest beach closures in the late spring and early summer months, shows that the number of pinnipeds at the haul-out tends to fluctuate, rather than showing the more straightforward declines and increases associated with closures and openings seen at other times of year (MSC, 1998). This may indicate that seal haul-out usage during the pupping season is less dependent on bar status. As such, the number of seals hauled out from May through July would be expected to fluctuate but is unlikely to respond dramatically to the absence of artificial breaching events. Regardless, any impacts to habitat resulting from SCWA's management of the estuary during the lagoon management period are not in relation to natural conditions but, rather, in relation to conditions resulting from SCWA's discontinued approach of artificial breaching during this period.

    In summary, there will be temporary physical alteration of the beach. However, natural opening and closure of the beach results in the same impacts to habitat. Therefore, seals are likely adapted to this cycle. In addition, the increase in rearing habitat quality has the goal of increasing salmonid abundance, ultimately providing more food for seals present within the action area. Thus, any impacts to marine mammal habitat are not expected to cause significant or long-term consequences for individual marine mammals or their populations.

    Estimated Take by Incidental Harassment

    Except with respect to certain activities not pertinent here, section 3(18) of the MMPA defines “harassment” as: “. . . any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).”

    SCWA has requested, and NMFS proposes, authorization to take harbor seals, California sea lions, and northern elephant seals, by Level B harassment only, incidental to estuary management activities. These activities, involving increased human presence and the use of heavy equipment and support vehicles, are expected to harass pinnipeds present at the haul-out through disturbance only. In addition, monitoring activities prescribed in the BiOp may harass additional animals at the Jenner haul-out and at the three haul-outs located in the estuary (Penny Logs, Patty's Rock, and Chalanchawi). Estimates of the number of harbor seals, California sea lions, and northern elephant seals that may be harassed by the proposed activities is based upon the number of potential events associated with Russian River estuary management activities and the average number of individuals of each species that are present during conditions appropriate to the activity. As described previously in this document, monitoring effort at the mouth of the Russian River has shown that the number of seals utilizing the haul-out declines during bar-closed conditions. Table 3 details the total number of estimated takes for harbor seals.

    Events associated with lagoon outlet channel management would occur only during the lagoon management period and are split into two categories: (1) Initial channel implementation, which would likely occur between May and September; and (2) maintenance and monitoring of the outlet channel, which would continue until October 15. In addition, it is possible that the initial outlet channel could close through natural processes, requiring additional channel implementation events. Based on past experience, SCWA estimates that a maximum of three outlet channel implementation events could be required, with each event lasting up to two days. Outlet channel implementation events would only occur when the bar is closed. Therefore, it is appropriate to use data from bar-closed monitoring events in estimating take (Table 2). Construction of the outlet channel is designed to produce a perched outflow, resulting in conditions that more closely resemble bar-closed than bar-open with regard to pinniped haul-out usage. As such, bar-closed data is appropriate for estimating take during all lagoon management period maintenance and monitoring activity. As dates of outlet channel implementation cannot be known in advance, the highest daily average of seals per month—the March average for 2009-15—is used in estimating take. For maintenance and monitoring activities associated with the lagoon outlet channel, which would occur on a weekly basis following implementation of the outlet channel, the average number of harbor seals for each month was used.

    Artificial breaching activities would also occur during bar-closed conditions. Data collected specifically during bar-closed conditions may be used for estimating take associated with artificial breaching (Table 2). The number of estimated artificial breaching events is also informed by experience. For those months with more frequent historical bar closure events, we assume that two such events could occur in any given year. For other months, we assume that only one such event would occur in a given year. Please see Table 1 in SCWA's application for more information.

    For monthly topographic surveys on the barrier beach, potential incidental take of harbor seals is typically calculated as one hundred percent of the seals expected to be encountered. The exception is during the month of April, when surveyors would avoid seals to reduce harassment of pups and/or mothers with neonates. For the monthly topographic survey during April, a pinniped monitor is positioned at the Highway 1 overlook and would notify the surveyors via radio when any seals on the haul-out begin to alert to their presence. This enables the surveyors to retreat slowly away from the haul-out, typically resulting in no disturbance. For that survey, the assumption is therefore that only ten percent of seals present would be harassed. The number of seals expected to be encountered is based on the average monthly number of seals hauled out as recorded during baseline surveys conducted by SCWA in 2011-15 (Table 1).

    For biological and physical habitat monitoring activities in the estuary, it was assumed that pinnipeds may be encountered once per event and flush from a river haul-out. The potential for harassment associated with these events is limited to the three haul-outs located in the estuary. In past experience, SCWA typically sees no more than a single harbor seal at these haul-outs, which consist of scattered logs and rocks that often submerge at high tide.

    As described previously, California sea lions and northern elephant seals are occasional visitors to the estuary. Based on limited information regarding occurrence of these species at the mouth of the Russian River estuary, we assume there is the potential to encounter one animal of each species per month throughout the year. Lagoon outlet channel activities could potentially occur over six months of the year, artificial breaching activities over eight months, topographic surveys year-round, and biological and physical monitoring in the estuary over eight months. Therefore, we assume that up to 34 incidents of take could occur per year for both the California sea lion and northern elephant seal. Based on past occurrence records, the proposed take authorization for these two species is likely a precautionary overestimate.

    Table 3—Estimated Number of Harbor Seal Takes Resulting From Russian River Estuary Management Activities Number of animals expected
  • to occur a
  • Number of events b c Potential total number of individual
  • animals that may be taken
  • Lagoon Outlet Channel Management (May 15 to October 15) Implementation: 117 d Implementation: 3 Implementation: 702 Maintenance and Monitoring:
  • May: 80
  • June: 98
  • July: 117
  • Aug: 17
  • Sept: 30
  • Oct: 28
  • Maintenance:
  • May: 1
  • June-Sept: 4/month
  • Oct: 1
  • Monitoring:
  • June-Sept: 2/month
  • Oct: 1
  • Maintenance: 1,156
  • Monitoring: 552
  • Total: 2,410
  • Artificial Breaching Oct: 28 Oct: 2 Oct: 56 Nov: 32 Nov: 2 Nov: 64 Dec: 59 Dec: 2 Dec: 118 Jan: 49 Jan: 1 Jan: 49 Feb: 75 Feb: 1 Feb: 75 Mar: 133 Mar: 1 Mar: 133 Apr: 99 Apr: 1 Apr: 99 May: 80 May: 2 May: 160 12 events maximum Total: 754 Topographic and Geophysical Beach Surveys Jan: 99 1 topographic survey/month; 100 percent of animals present Jun-Feb; 10 percent of animals present Mar-May Jan: 99 Feb: 131 Feb: 131 Mar: 165 Mar: 165 Apr: 141 Apr: 14 May: 151 May: 151 Jun: 164 Jun: 164 Jul: 282 Jul: 282 Aug: 133 Aug: 133 Sep: 62 Sep: 62 Oct: 48 Oct: 48 Nov: 68 Nov: 68 Dec: 98 Total: 1,415 Biological and Physical Habitat Monitoring in the Estuary 1 e 113 113 Total 4,692 a For Lagoon Outlet Channel Management and Artificial Breaching, average daily number of animals corresponds with data from Table 2. For Topographic and Geophysical Beach Surveys, average daily number of animals corresponds with 2011-15 data from Table 1. b For implementation of the lagoon outlet channel, an event is defined as a single, two-day episode. For the remaining activities, an event is defined as a single day on which an activity occurs. Some events may include multiple activities. c Number of events for artificial breaching derived from historical data. The average number of events for each month was rounded up to the nearest whole number; estimated number of events for December was increased from one to two because multiple closures resulting from storm events have occurred in recent years during that month. The total numbers (12) likely represent an overestimate, as the average annual number of events is five. d Although implementation could occur at any time during the lagoon management period, the highest daily average per month from the lagoon management period was used. e Based on past experience, SCWA expects that no more than one seal may be present, and thus have the potential to be disturbed, at the three river haul-outs.

    The take numbers described in the preceding text are annual estimates. Therefore, over the course of the 5-year period of validity of the proposed regulations, we propose to authorize a total of 23,460 incidents of take for harbor seals and 170 such incidents each for the California sea lion and northern elephant seal.

    Analyses and Preliminary Determinations Negligible Impact Analysis

    NMFS has defined “negligible impact” in 50 CFR 216.103 as “. . . an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.” A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (i.e., population-level effects). An estimate of the number of takes alone is not enough information on which to base an impact determination. In addition to considering estimates of the number of marine mammals that might be “taken” through behavioral harassment, we consider other factors, such as the likely nature of any responses (e.g., intensity, duration), the context of any such responses (e.g., critical reproductive time or location, migration), as well as the number and nature of estimated Level A harassment takes (if any), and effects on habitat. We also assess the number, intensity, and context of estimated takes by evaluating this information relative to population status.

    Consistent with the 1989 preamble for NMFS's implementing regulations (54 FR 40338; September 29, 1989), the impacts from other past and ongoing anthropogenic activities are incorporated into these analyses via their impacts on the environmental baseline (e.g., as reflected in the regulatory status of the species, population size and growth rate where known, sources of human-caused mortality).

    Although SCWA's estuary management activities may disturb pinnipeds hauled out at the mouth of the Russian River, as well as those hauled out at several locations in the estuary during recurring monitoring activities, impacts are occurring to a small, localized group of animals. While these impacts can occur year-round, they occur sporadically and for limited duration (e.g., a maximum of two consecutive days for water level management events). Seals will likely become alert or, at most, flush into the water in reaction to the presence of crews and equipment on the beach. While disturbance may occur during a sensitive time (during the March 15-June 30 pupping season), mitigation measures have been specifically designed to further minimize harm during this period and eliminate the possibility of pup injury or mother-pup separation.

    No injury, serious injury, or mortality is anticipated, nor is the proposed action likely to result in long-term impacts such as permanent abandonment of the haul-out. Injury, serious injury, or mortality to pinnipeds would likely result from startling animals inhabiting the haul-out into a stampede reaction, or from extended mother-pup separation as a result of such a stampede. Long-term impacts to pinniped usage of the haul-out could result from significantly increased presence of humans and equipment on the beach. To avoid these possibilities, we have worked with SCWA to develop the previously described mitigation measures. These are designed to reduce the possibility of startling pinnipeds, by gradually apprising them of the presence of humans and equipment on the beach, and to reduce the possibility of impacts to pups by eliminating or altering management activities on the beach when pups are present and by setting limits on the frequency and duration of events during pupping season. During the past fifteen years of flood control management, implementation of similar mitigation measures has resulted in no known stampede events and no known injury, serious injury, or mortality. Over the course of that time period, management events have generally been infrequent and of limited duration.

    No pinniped stocks for which incidental take authorization is proposed are listed as threatened or endangered under the ESA or determined to be strategic or depleted under the MMPA. Recent data suggests that harbor seal populations have reached carrying capacity; populations of California sea lions and northern elephant seals in California are also considered healthy.

    In summary, and based on extensive monitoring data, we believe that impacts to hauled-out pinnipeds during estuary management activities would be behavioral harassment of limited duration (i.e., less than one day) and limited intensity (i.e., temporary flushing at most). Stampeding, and therefore injury or mortality, is not expected—nor been documented—in the years since appropriate protocols were established (see “Proposed Mitigation” for more details). Further, the continued, and increasingly heavy (see figures in SCWA documents), use of the haul-out despite decades of breaching events indicates that abandonment of the haul-out is unlikely. Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the proposed monitoring and mitigation measures, we preliminarily find that the total marine mammal take from SCWA's estuary management activities will have a negligible impact on the affected marine mammal species or stocks.

    Small Numbers Analysis

    The proposed number of animals taken for each species of pinniped can be considered small relative to the population size. There are an estimated 30,968 harbor seals in the California stock, 296,750 California sea lions, and 179,000 northern elephant seals in the California breeding population. Based on extensive monitoring effort specific to the affected haul-out and historical data on the frequency of the specified activity, we are proposing to authorize annual levels of take, by Level B harassment only, of 4,692 incidents of harassment for harbor seals, 34 incidents of harassment for California sea lions, and 34 incidents of harassment for northern elephant seals, representing 15.2, 0.01, and 0.02 percent of the populations, respectively. However, this represents an overestimate of the number of individuals harassed annually over the duration of the proposed regulations, because these totals represent much smaller numbers of individuals that may be harassed multiple times. Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the mitigation and monitoring measures, we preliminarily find that small numbers of marine mammals will be taken relative to the populations of the affected species or stocks.

    Proposed Monitoring and Reporting

    In order to issue an incidental take authorization for an activity, section 101(a)(5)(A) of the MMPA states that NMFS must set forth “requirements pertaining to the monitoring and reporting of such taking.” The MMPA implementing regulations at 50 CFR 216.104(a)(13) indicate that requests for incidental take authorizations must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the proposed action area.

    Any monitoring requirement we prescribe should improve our understanding of one or more of the following:

    • Occurrence of marine mammal species in action area (e.g., presence, abundance, distribution, density).

    • Nature, scope, or context of likely marine mammal exposure to potential stressors/impacts (individual or cumulative, acute or chronic), through better understanding of: (1) Action or environment (e.g., source characterization, propagation, ambient noise); (2) affected species (e.g., life history, dive patterns); (3) co-occurrence of marine mammal species with the action; or (4) biological or behavioral context of exposure (e.g., age, calving, or feeding areas).

    • Individual responses to acute stressors, or impacts of chronic exposures (behavioral or physiological).

    • How anticipated responses to stressors impact either: (1) Long-term fitness and survival of an individual; or (2) population, species, or stock.

    • Effects on marine mammal habitat and resultant impacts to marine mammals.

    • Mitigation and monitoring effectiveness.

    SCWA submitted a marine mammal monitoring plan as part of the ITA application. It can be found online at www.nmfs.noaa.gov/pr/permits/incidental/construction.htm. The plan, which has been successfully implemented (in slightly different form from the currently proposed plan) by SCWA under previous ITAs, may be modified or supplemented based on comments or new information received from the public during the public comment period. The purpose of this monitoring plan, which is carried out collaboratively with the Stewards of the Coasts and Redwoods (Stewards) organization, is to detect the response of pinnipeds to estuary management activities at the Russian River estuary. SCWA has designed the plan both to satisfy the requirements of the IHA, and to address the following questions of interest:

    1. Under what conditions do pinnipeds haul out at the Russian River estuary mouth at Jenner?

    2. How do seals at the Jenner haul-out respond to activities associated with the construction and maintenance of the lagoon outlet channel and artificial breaching activities?

    3. Does the number of seals at the Jenner haul-out significantly differ from historic averages with formation of a summer (May 15 to October 15) lagoon in the Russian River estuary?

    4. Are seals at the Jenner haul-out displaced to nearby river and coastal haul-outs when the mouth remains closed in the summer?

    Proposed Monitoring Measures

    Baseline Monitoring—Seals at the Jenner haul-out would be counted for four hours every week, with no more than four baseline surveys each month. Two monitoring events each month would occur in the morning and two would occur in the afternoon with an effort to schedule a morning survey at low and high tide each month and an afternoon survey at low and high tide each month. This baseline information will provide SCWA with details that may help to plan estuary management activities in the future to minimize pinniped interaction. Survey protocols are as follows: All seals hauled out on the beach are counted every 30 minutes from the overlook on the bluff along Highway 1 adjacent to the haul-out using spotting scopes. Monitoring may conclude for the day if weather conditions affect visibility (e.g., heavy fog in the afternoon). Depending on how the sandbar is formed, seals may haul out in multiple groups at the mouth. At each 30-minute count, the observer indicates where groups of seals are hauled out on the sandbar and provides a total count for each group. If possible, adults and pups are counted separately.

    This primary haul-out is where the majority of seals are found and where pupping occurs, and SCWA's proposed monitoring would allow continued development in understanding the physical and biological factors that influence seal abundance and behavior at the site. In particular, SCWA notes that the proposed frequency of surveys would allow them to be able to observe the influence of physical changes that do not persist for more than ten days, like brief periods of barrier beach closures or other environmental changes, and would allow for assessment of how seals respond to barrier beach closures as well as accurate estimation of the number of harbor seal pups born at Jenner each year.

    In addition to the census data, disturbances of the haul-out are recorded. The method for recording disturbances follows those in Mortenson (1996). Disturbances would be recorded on a three-point scale that represents an increasing seal response to the disturbance (Table 4). The time, source, and duration of the disturbance, as well as an estimated distance between the source and haul-out, are recorded. It should be noted that only responses falling into Mortenson's Levels 2 and 3 will be considered as harassment under the MMPA, under the terms of these proposed regulations.

    Table 4—Seal Response to Disturbance Level Type of response Definition 1 Alert Seal head orientation or brief movement in response to disturbance, which may include turning head towards the disturbance, craning head and neck while holding the body rigid in a u-shaped position, changing from a lying to a sitting position, or brief movement of less than twice the animal's body length. 2 Movement Movements in response to the source of disturbance, ranging from short withdrawals at least twice the animal's body length to longer retreats over the beach, or if already moving a change of direction of greater than 90 degrees. 3 Flight All retreats (flushes) to the water.

    Weather conditions are recorded at the beginning of each census. These include temperature, Beaufort sea state, precipitation/visibility, and wind speed. Tide levels and estuary water surface elevations are correlated to the monitoring start and end times.

    In an effort towards understanding possible relationships between use of the Jenner haul-out and nearby coastal and river haul-outs, several other haul-outs on the coast and in the Russian River estuary are monitored as well (see Figure 1 of SCWA's application). Peripheral site monitoring would occur only in the event of an extended period of lagoon conditions (i.e., barrier beach closed with perched outlet channel for three weeks or more). Abundance at these sites has been observed to generally be very low regardless of river mouth condition. These sites are generally very small physically, composed of small rocks or outcrops or logs in the river, and therefore could not accommodate significant displacement from the main beach haul-out. Monitoring of peripheral sites under extended lagoon conditions will allow for possible detection of any changed use patterns.

    Estuary Management Event Monitoring, Lagoon Outlet Channel—Should the mouth close during the lagoon management period, SCWA would construct a lagoon outlet channel as required by the BiOp. Activities associated with the initial construction of the outlet channel, as well as the maintenance of the channel that may be required, would be monitored for disturbances to the seals at the Jenner haul-out.

    A one-day pre-event channel survey would be made within one to three days prior to constructing the outlet channel. The haul-out would be monitored on the day the outlet channel is constructed and daily for up to the maximum two days allowed for channel excavation activities. Monitoring would also occur on each day that the outlet channel is maintained using heavy equipment for the duration of the lagoon management period. Monitoring of outlet channel construction and maintenance would correspond with that described under the “Baseline Monitoring” section previously, with the exception that management activity monitoring duration is defined by event duration. On the day of the management event, pinniped monitoring begins at least one hour prior to the crew and equipment accessing the beach work area and continues through the duration of the event, until at least one hour after the crew and equipment leave the beach.

    In an attempt to understand whether seals from the Jenner haul-out are displaced to coastal and river haul-outs nearby when management events occur, other nearby haul-outs are monitored concurrently with monitoring of outlet channel construction and maintenance activities. This provides an opportunity to qualitatively assess whether these haul-outs are being used by seals displaced from the Jenner haul-out during lagoon outlet channel excavation and maintenance. This monitoring would not provide definitive results regarding displacement to nearby coastal and river haul-outs, as individual seals are not marked or photo-identified, but is useful in tracking general trends in haul-out use during lagoon outlet channel excavation and maintenance. As volunteers are required to monitor these peripheral haul-outs, haul-out locations may need to be prioritized if there are not enough volunteers available. In that case, priority would be assigned to the nearest haul-outs (North Jenner and Odin Cove), followed by the Russian River estuary haul-outs, and finally the more distant coastal haul-outs.

    Estuary Management Event Monitoring, Artificial Breaching Events—In accordance with the Russian River BiOp, SCWA may artificially breach the barrier beach outside of the summer lagoon management period, and may conduct a maximum of two such breachings during the lagoon management period, when estuary water surface elevations rise above seven feet. In that case, NMFS may be consulted regarding potential scheduling of an artificial breaching event to open the barrier beach and reduce flooding risk.

    Pinniped response to artificial breaching will be monitored at each such event during the period of validity of these proposed regulations. Methods would follow the census and disturbance monitoring protocols described in the “Baseline Monitoring” section, which were also used for the 1996 to 2000 monitoring events (MSC, 1997, 1998, 1999, 2000; SCWA and MSC, 2001). The exception, as for lagoon management events, is that duration of monitoring is dependent upon duration of the event. On the day of the management event, pinniped monitoring begins at least one hour prior to the crew and equipment accessing the beach work area and continues through the duration of the event, until at least one hour after the crew and equipment leave the beach.

    For all counts, the following information would be recorded in thirty-minute intervals: (1) Pinniped counts, by species; (2) behavior; (3) time, source and duration of any disturbance; (4) estimated distances between source of disturbance and pinnipeds; (5) weather conditions (e.g., temperature, wind); and (5) tide levels and estuary water surface elevation.

    Monitoring During Pupping Season—The pupping season is defined as March 15 to June 30. Baseline, lagoon outlet channel, and artificial breaching monitoring during the pupping season will include records of neonate (pups less than one week old) observations. Characteristics of a neonate pup include: Body weight less than 15 kg; thin for their body length; an umbilicus or natal pelage present; wrinkled skin; and awkward or jerky movements on land. SCWA will coordinate with the Seal Watch monitoring program to determine if pups less than one week old are on the beach prior to a water level management event.

    If, during monitoring, observers sight any pup that might be abandoned, SCWA would contact the NMFS stranding response network immediately and also report the incident to NMFS's West Coast Regional Office and Office of Protected Resources within 48 hours. Observers will not approach or move the pup. Potential indications that a pup may be abandoned are no observed contact with adult seals, no movement of the pup, and the pup's attempts to nurse are rebuffed.

    Staffing—Monitoring is conducted by qualified individuals, which may include professional biologists employed by NMFS or SCWA or volunteers trained by the Stewards' Seal Watch program (Stewards). All volunteer monitors are required to attend classroom-style training and field site visits to the haul-outs. Training covers the MMPA and conditions of the ITA, SCWA's pinniped monitoring protocols, pinniped species identification, age class identification (including a specific discussion regarding neonates), recording of count and disturbance observations (including completion of datasheets), and use of equipment. Pinniped identification includes the harbor seal, California sea lion, and northern elephant seal, as well as other pinniped species with potential to occur in the area. Generally, SCWA staff and volunteers collect baseline data on Jenner haul-out use during the twice-monthly monitoring events. A schedule for this monitoring would be established with Stewards once volunteers are available for the monitoring effort. SCWA staff monitors lagoon outlet channel excavation and maintenance activities and artificial breaching events at the Jenner haul-out, with assistance from Stewards volunteers as available. Stewards volunteers monitor the coastal and river haul-out locations during lagoon outlet channel excavation and maintenance activities.

    Training on the MMPA, pinniped identification, and the conditions of the ITA is held for staff and contractors assigned to estuary management activities. The training includes equipment operators, safety crew members, and surveyors. In addition, prior to beginning each water surface elevation management event, the biologist monitoring the event participates in the onsite safety meeting to discuss the location(s) of pinnipeds at the Jenner haul-out that day and methods of avoiding and minimizing disturbances to the haul-out as outlined in the ITA.

    Reporting

    SCWA is required to submit an annual report on all activities and marine mammal monitoring results to NMFS within ninety days following the end of the monitoring period. These reports would contain the following information:

    • The number of pinnipeds taken, by species and age class (if possible);

    • Behavior prior to and during water level management events;

    • Start and end time of activity;

    • Estimated distances between source and pinnipeds when disturbance occurs;

    • Weather conditions (e.g., temperature, wind, etc.);

    • Haul-out reoccupation time of any pinnipeds based on post-activity monitoring;

    • Tide levels and estuary water surface elevation; and

    • Pinniped census from bi-monthly and nearby haul-out monitoring.

    The annual report includes descriptions of monitoring methodology, tabulation of estuary management events, summary of monitoring results, and discussion of problems noted and proposed remedial measures.

    SCWA must also submit a comprehensive summary report with any future application for renewed regulations and Letters of Authorization.

    Summary of Previous Monitoring

    SCWA complied with the mitigation and monitoring required under previous authorizations. Prior notices of proposed authorization have provided summaries of monitoring results from 2009-15; please see those documents for more information. Previous monitoring reports are available online at www.nmfs.noaa.gov/pr/permits/incidental/construction.htm.

    While the observed take in all years was significantly lower than the level authorized, it is possible that incidental take in future years could approach the level authorized. Actual take is dependent largely upon the number of water level management events that occur, which is unpredictable. Take of species other than harbor seals depends upon whether those species, which do not consistently utilize the Jenner haul-out, are present. The authorized take, though much higher than the actual take, is justified based on conservative estimated scenarios for animal presence and necessity of water level management. No significant departure from the method of estimation is used for these proposed regulations (see “Estimated Take by Incidental Harassment”) for the same activities in 2017-22.

    SCWA has continued to investigate the relative disturbance caused by their activities versus that caused by other sources (see Figures 5-6 of SCWA's 2015 monitoring report as well as the 2014 report). Harbor seals are most frequently disturbed by people on foot, with an increase in frequency of people present during bar-closed conditions (see Figure 5 of SCWA's 2015 monitoring report). Kayakers are the next most frequent source of disturbance overall, also with an increase during bar-closed conditions. For any disturbance event it is often only a fraction of the total haul-out that responds. Some sources of disturbance, though rare, have a larger disturbing effect when they occur. For example, disturbances from dogs occur less frequently, but these incidents often disturb over half of the seals hauled out.

    Conclusions

    The following section provides a summary of information available in SCWA's 2015 monitoring report. The primary purpose of SCWA's pinniped monitoring plan is to detect the response of pinnipeds to estuary management activities at the Russian River estuary. However, as described previously, the questions listed below are also of specific interest. The limited data available thus far precludes drawing definitive conclusions regarding the key questions in SCWA's monitoring plan, but we discuss preliminary conclusions and available evidence below.

    1. Under what conditions do pinnipeds haul out at the Russian River estuary mouth at Jenner?

    Although multiple factors likely influence harbor seal presence at the haul-out, SCWA has shown that since 2009 harbor seal attendance is influenced by hour of day (increasing from morning through early afternoon; see Figure 2 in SCWA's monitoring plan), tidal state (decrease with higher tides; see Figure 3 of SCWA's monitoring plan), month of year (peak in July and decrease in fall; see Figure 4 of SCWA's monitoring plan), and river mouth condition (i.e., open or closed).

    Daily average abundance of seals was lower during bar-closed conditions compared to bar-open conditions. This effect is likely due to a combination of factors, including increased human disturbance, reduced access to the ocean from the estuary side of the barrier beach, and the increased disturbance from wave action when seals utilize the ocean side of the barrier beach. Baseline data indicate that the highest numbers of seals are observed at the Jenner haul-out in July (during the molting season; see Figure 2 of SCWA's 2015 monitoring report), as would be expected on the basis of harbor seal biological and physiological requirements (Herder, 1986; Allen et al., 1989; Stewart and Yochem, 1994; Hanan, 1996; Gemmer, 2002).

    Overall, seals appear to utilize the Jenner haul-out throughout the tidal cycle. Seal abundance is significantly lower during the highest of tides when the haul-out is subject to an increase in wave overwash. Time of day had some effect on seal abundance at the Jenner haul-out, as abundance was greater in the afternoon hours compared to the morning hours. More analysis exploring the relationship of ambient temperature, incidence of disturbance, and season on time of day effects would help to explain why these variations in seal abundance occur. It is likely that a combination of multiple factors (e.g., season, tides, wave heights, level of beach disturbance) influence when the haul-out is most utilized.

    2. How do seals at the Jenner haul-out respond to activities associated with the construction and maintenance of the lagoon outlet channel and artificial breaching activities?

    SCWA has, thus far, implemented the lagoon outlet channel only once, in 2010. The response of harbor seals at the Jenner haul-out to the outlet channel implementation activities was similar to responses observed during past artificial breaching events (MSC, 1997, 1998, 1999, 2000; SCWA and MSC, 2001). The harbor seals typically alert to the sound of equipment on the beach and leave the haul-out as the crew and equipment approach. Individuals then haul out on the beach while equipment is operating, leaving the beach again when equipment and staff depart, and typically begin to return to the haul-out within thirty minutes of the work ending. Because the barrier beach reformed soon after outlet channel implementation and subsequently breached on its own following the 2010 event, maintenance of the outlet channel was not necessary and monitoring of the continued response of pinnipeds at the Jenner haul-out to maintenance of the outlet channel and management of the lagoon for the duration of the lagoon management period has not yet been possible. As noted previously, when breaching activities were conducted south of the haul-out location seals often remained on the beach during all or some of the breaching activity. This indicates that seals are less disturbed by activities when equipment and crew do not pass directly past their haul-out.

    3. Does the number of seals at the Jenner haul-out significantly differ from historic averages with formation of a summer lagoon in the Russian River estuary?

    The duration of closures in recent years has not generally been dissimilar from the duration of closures that have been previously observed at the estuary, and lagoon outlet channel implementation has occurred only once, meaning that there has been a lack of opportunity to study harbor seal response to extended lagoon conditions. A barrier beach has formed during the lagoon management period sixteen times since SCWA began implementing the lagoon outlet channel adaptive management plan, with an average duration of fourteen days. However, the sustained river outlet closures observed in 2014-15 during the lagoon management period provide some information regarding the abundance of seals during the formation of a summer lagoon. While seal abundance was lower overall during bar-closed conditions, overall there continues to be a slight increasing trend in seal abundance. These observations may indicate that, while seal abundance exhibits a short-term decline following bar closure, the number of seals utilizing the Jenner haul-out overall during such conditions is not affected. Short-term fluctuations in abundance aside, it appears that the general trends of increased abundance during summer and decreased abundance during fall, which coincide with the annual molt and likely foraging dispersal, respectively, are not affected. Such short-term fluctuations are likely not an indicator that seals are less likely to use the Jenner haul-out at any time.

    4. Are seals at the Jenner haul-out displaced to nearby river and coastal haul-outs when the mouth remains closed in the summer?

    Initial comparisons of peripheral (river and coastal) haul-out count data to the Jenner haul-out counts have been inconclusive (see Table 2 and Figures 6-7 of SCWA's 2015 monitoring report). As noted above, SCWA will focus ongoing effort at peripheral sites during periods of extended bar-closure and lagoon formation.

    Adaptive Management

    The regulations governing the take of marine mammals incidental to SCWA estuary management activities would contain an adaptive management component.

    The reporting requirements associated with this proposed rule are designed to provide NMFS with monitoring data from the previous year to allow consideration of whether any changes are appropriate. The use of adaptive management allows NMFS to consider new information from different sources to determine (with input from SCWA regarding practicability) on an annual or biennial basis if mitigation or monitoring measures should be modified (including additions or deletions). Mitigation measures could be modified if new data suggests that such modifications would have a reasonable likelihood of reducing adverse effects to marine mammals and if the measures are practicable.

    SCWA's monitoring program (see “Proposed Monitoring and Reporting”) would be managed adaptively. Changes to the proposed monitoring program may be adopted if they are reasonably likely to better accomplish the MMPA monitoring goals described previously or may better answer the specific questions associated with SCWA's monitoring plan.

    The following are some of the possible sources of applicable data to be considered through the adaptive management process: (1) Results from monitoring reports, as required by MMPA authorizations; (2) results from general marine mammal and sound research; and (3) any information which reveals that marine mammals may have been taken in a manner, extent, or number not authorized by these regulations or subsequent LOAs.

    Impact on Availability of Affected Species for Taking for Subsistence Uses

    There are no relevant subsistence uses of marine mammals implicated by the specified activity. Therefore, we have determined that the total taking of affected species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes.

    Endangered Species Act (ESA)

    No marine mammal species listed under the ESA are expected to be affected by these activities. Therefore, we have determined that section 7 consultation under the ESA is not required.

    National Environmental Policy Act

    NMFS prepared an EA (2010) and associated FONSI in accordance with NEPA and the regulations published by the Council on Environmental Quality. These documents are posted at the aforementioned Internet address. Information in SCWA's application, NMFS's EA (2010), and this notice collectively provide the environmental information related to proposed issuance of these regulations for public review and comment. We will review all comments submitted in response to this notice as we complete the NEPA process, including a decision of whether the existing EA and FONSI provide adequate analysis related to the potential environmental effects of issuing an incidental take authorization to SCWA, prior to a final decision on the request.

    Request for Information

    NMFS requests interested persons to submit comments, information, and suggestions concerning SCWA's request and the proposed regulations (see ADDRESSES). All comments will be reviewed and evaluated as we prepare the final rule and make final determinations on whether to issue the requested authorizations. This notice and referenced documents provide all environmental information relating to our proposed action for public review.

    Classification

    Pursuant to the procedures established to implement Executive Order 12866, the Office of Management and Budget has determined that this proposed rule is not significant.

    Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA), the Chief Counsel for Regulation of the Department of Commerce has certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. SCWA is the sole entity that would be subject to the requirements in these proposed regulations, and the Sonoma County Water Agency is not a small governmental jurisdiction, small organization, or small business, as defined by the RFA. Under the RFA, governmental jurisdictions are considered to be small if they are “. . . governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than 50,000 . . . .” As of the 2010 census, Sonoma County, CA had a population of nearly 500,000 people. Because of this certification, a regulatory flexibility analysis is not required and none has been prepared.

    Notwithstanding any other provision of law, no person is required to respond to nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act (PRA) unless that collection of information displays a currently valid OMB control number. These requirements have been approved by OMB under control number 0648-0151 and include applications for regulations, subsequent LOAs, and reports. Send comments regarding any aspect of this data collection, including suggestions for reducing the burden, to NMFS and the OMB Desk Officer (see ADDRESSES).

    List of Subjects in 50 CFR Part 217

    Exports, Fish, Imports, Indians, Labeling, Marine mammals, Penalties, Reporting and recordkeeping requirements, Seafood, Transportation.

    Dated: December 23, 2016. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

    For reasons set forth in the preamble, 50 CFR part 217 is proposed to be amended as follows:

    PART 217—REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE MAMMALS 1. The authority citation for part 217 continues to read as follows: Authority:

    16 U.S.C. 1361 et seq.

    2. Add subpart A to part 217 to read as follows: Subpart A—Taking Marine Mammals Incidental to Russian River Estuary Management Activities Sec. 217.1 Specified activity and specified geographical region. 217.2 Effective dates. 217.3 Permissible methods of taking. 217.4 Prohibitions. 217.5 Mitigation requirements. 217.6 Requirements for monitoring and reporting. 217.7 Letters of Authorization. 217.8 Renewals and modifications of Letters of Authorization. 217.9-217.10 [Reserved] Subpart A—Taking Marine Mammals Incidental to Russian River Estuary Management Activities
    § 217.1 Specified activity and specified geographical region.

    (a) Regulations in this subpart apply only to the Sonoma County Water Agency (SCWA) and those persons it authorizes or funds to conduct activities on its behalf for the taking of marine mammals that occurs in the area outlined in paragraph (b) of this section and that occurs incidental to estuary management activities.

    (b) The taking of marine mammals by SCWA may be authorized in a Letter of Authorization (LOA) only if it occurs at Goat Rock State Beach or in the Russian River estuary in California.

    § 217.2 Effective dates.

    Regulations in this subpart are effective from [EFFECTIVE DATE OF FINAL RULE] through [DATE 5 YEARS AFTER EFFECTIVE DATE OF FINAL RULE].

    § 217.3 Permissible methods of taking.

    (a) Under LOAs issued pursuant to §§ 216.106 and 217.7 of this chapter, the Holder of the LOA (hereinafter “SCWA”) may incidentally, but not intentionally, take marine mammals within the area described in § 217.1(b) of this chapter by Level B harassment associated with estuary management activities, provided the activity is in compliance with all terms, conditions, and requirements of the regulations in this subpart and the appropriate LOA.

    § 217.4 Prohibitions.

    Notwithstanding takings contemplated in § 217.1 and authorized by an LOA issued under §§ 216.106 and 217.7 of this chapter, no person in connection with the activities described in § 217.1 of this chapter may:

    (a) Violate, or fail to comply with, the terms, conditions, and requirements of this subpart or an LOA issued under §§ 216.106 and 217.7 of this chapter;

    (b) Take any marine mammal not specified in such LOAs;

    (c) Take any marine mammal specified in such LOAs in any manner other than as specified;

    (d) Take a marine mammal specified in such LOAs if NMFS determines such taking results in more than a negligible impact on the species or stocks of such marine mammal; or

    (e) Take a marine mammal specified in such LOAs if NMFS determines such taking results in an unmitigable adverse impact on the species or stock of such marine mammal for taking for subsistence uses.

    § 217.5 Mitigation requirements.

    When conducting the activities identified in § 217.1(a) of this chapter, the mitigation measures contained in any LOA issued under §§ 216.106 and 217.7 of this chapter must be implemented. These mitigation measures shall include but are not limited to:

    (a) General conditions: (1) A copy of any issued LOA must be in the possession of SCWA, its designees, and work crew personnel operating under the authority of the issued LOA.

    (2) If SCWA observes a pup that may be abandoned, it shall contact the National Marine Fisheries Service (NMFS) West Coast Regional Stranding Coordinator immediately and also report the incident to NMFS Office of Protected Resources within 48 hours. Observers shall not approach or move the pup.

    (b) SCWA crews shall cautiously approach the haul-out ahead of heavy equipment.

    (c) SCWA staff shall avoid walking or driving equipment through the seal haul-out.

    (d) Crews on foot shall make an effort to be seen by seals from a distance.

    (e) During breaching events, all monitoring shall be conducted from the overlook on the bluff along Highway 1 adjacent to the haul-out.

    (f) A water level management event may not occur for more than two consecutive days unless flooding threats cannot be controlled.

    (g) All work shall be completed as efficiently as possible and with the smallest amount of heavy equipment possible.

    (h) Boats operating near river haul-outs during monitoring shall be kept within posted speed limits and driven as far from the haul-outs as safely possible.

    (i) SCWA shall implement the following mitigation measures during pupping season (March 15-June 30):

    (1) SCWA shall maintain a one week no-work period between water level management events (unless flooding is an immediate threat) to allow for an adequate disturbance recovery period. During the no-work period, equipment must be removed from the beach.

    (2) If a pup less than one week old is on the beach where heavy machinery will be used or on the path used to access the work location, the management action shall be delayed until the pup has left the site or the latest day possible to prevent flooding while still maintaining suitable fish rearing habitat. In the event that a pup remains present on the beach in the presence of flood risk, SCWA shall consult with NMFS and the California Department of Fish and Wildlife to determine the appropriate course of action. SCWA shall coordinate with the locally established seal monitoring program (Stewards of the Coast and Redwoods) to determine if pups less than one week old are on the beach prior to a breaching event.

    (3) Physical and biological monitoring shall not be conducted if a pup less than one week old is present at the monitoring site or on a path to the site.

    § 217.6 Requirements for monitoring and reporting.

    (a) Monitoring and reporting shall be conducted in accordance with the approved Pinniped Monitoring Plan.

    (b) Baseline monitoring shall be conducted each week, with two events per month occurring in the morning and two per month in the afternoon. These censuses shall continue for four hours, weather permitting; the census days shall be chosen to ensure that monitoring encompasses a low and high tide each in the morning and afternoon. All seals hauled out on the beach shall be counted every 30 minutes from the overlook on the bluff along Highway 1 adjacent to the haul-out using high-powered spotting scopes. Observers shall indicate where groups of seals are hauled out on the sandbar and provide a total count for each group. If possible, adults and pups shall be counted separately.

    (c) Peripheral coastal haul-outs shall be visited concurrently with baseline monitoring in the event that a lagoon outlet channel is implemented and maintained for a prolonged period of over 21 days.

    (d) During estuary management events, monitoring shall occur on all days that activity is occurring using the same protocols as described for baseline monitoring, with the difference that monitoring shall begin at least one hour prior to the crew and equipment accessing the beach work area and continue through the duration of the event, until at least one hour after the crew and equipment leave the beach. In addition, a one-day pre-event survey of the area shall be made within one to three days of the event and a one-day post-event survey shall be made after the event, weather permitting.

    (e) For all monitoring, the following information shall be recorded in 30-minute intervals:

    (1) Pinniped counts by species;

    (2) Behavior;

    (3) Time, source and duration of any disturbance, with takes incidental to SCWA actions recorded only for responses involving movement away from the disturbance or responses of greater intensity (e.g., not for alerts);

    (4) Estimated distances between source of disturbance and pinnipeds;

    (5) Weather conditions (e.g., temperature, percent cloud cover, and wind speed); and

    (6) Tide levels and estuary water surface elevation.

    (f) Reporting: (1) Annual reporting: (i) SCWA shall submit an annual summary report to NMFS not later than ninety days following the end of a given reporting period. SCWA shall provide a final report within thirty days following resolution of comments on the draft report.

    (ii) These reports shall contain, at minimum, the following:

    (A) The number of seals taken, by species and age class (if possible);

    (B) Behavior prior to and during water level management events;

    (C) Start and end time of activity;

    (D) Estimated distances between source and seals when disturbance occurs;

    (E) Weather conditions (e.g., temperature, wind, etc.);

    (F) Haul-out reoccupation time of any seals based on post-activity monitoring;

    (G) Tide levels and estuary water surface elevation;

    (H) Seal census from bi-monthly and nearby haul-out monitoring; and

    (I) Specific conclusions that may be drawn from the data in relation to the four questions of interest in SCWA's Pinniped Monitoring Plan, if possible.

    (2) SCWA shall submit a comprehensive summary report to NMFS in conjunction with any future submitted request for incidental take authorization.

    (g) Reporting of injured or dead marine mammals:

    (1) In the unanticipated event that the activity defined in § 217.1(a) clearly causes the take of a marine mammal in a prohibited manner, SCWA shall immediately cease such activity and report the incident to the Office of Protected Resources (OPR), NMFS and the West Coast Regional Stranding Coordinator, NMFS. Activities shall not resume until NMFS is able to review the circumstances of the prohibited take. NMFS will work with SCWA to determine what measures are necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. SCWA may not resume their activities until notified by NMFS. The report must include the following information:

    (i) Time and date of the incident;

    (ii) Description of the incident;

    (iii) Environmental conditions;

    (iv) Description of all marine mammal observations in the 24 hours preceding the incident;

    (v) Species identification or description of the animal(s) involved;

    (vi) Fate of the animal(s); and

    (vii) Photographs or video footage of the animal(s).

    (2) In the event that SCWA discovers an injured or dead marine mammal and determines that the cause of the injury or death is unknown and the death is relatively recent (e.g., in less than a moderate state of decomposition), SCWA shall immediately report the incident to OPR and the West Coast Regional Stranding Coordinator, NMFS. The report must include the information identified in paragraph (g)(1) of this section. Activities may continue while NMFS reviews the circumstances of the incident. NMFS will work with SCWA to determine whether additional mitigation measures or modifications to the activities are appropriate.

    (3) In the event that SCWA discovers an injured or dead marine mammal and determines that the injury or death is not associated with or related to the activities defined in § 217.1(a) (e.g., previously wounded animal, carcass with moderate to advanced decomposition, scavenger damage), SCWA shall report the incident to OPR and the West Coast Regional Stranding Coordinator, NMFS, within 24 hours of the discovery. SCWA shall provide photographs or video footage or other documentation of the stranded animal sighting to NMFS.

    (4) Pursuant to paragraphs (g)(2) and (3) of this section, SCWA may use discretion in determining what injuries (i.e., nature and severity) are appropriate for reporting. At minimum, SCWA must report those injuries considered to be serious (i.e., will likely result in death) or that are likely caused by human interaction (e.g., entanglement, gunshot). Also pursuant to sections paragraphs (g)(2) and (3) of this section, SCWA may use discretion in determining the appropriate vantage point for obtaining photographs of injured/dead marine mammals.

    § 217.7 Letters of Authorization.

    (a) To incidentally take marine mammals pursuant to these regulations, SCWA must apply for and obtain an LOA.

    (b) An LOA, unless suspended or revoked, may be effective for a period of time not to exceed the expiration date of these regulations.

    (c) If an LOA expires prior to the expiration date of these regulations, SCWA may apply for and obtain a renewal of the LOA.

    (d) In the event of projected changes to the activity or to mitigation and monitoring measures required by an LOA, SCWA must apply for and obtain a modification of the LOA as described in § 217.8 of this chapter.

    (e) The LOA shall set forth:

    (1) Permissible methods of incidental taking;

    (2) Means of effecting the least practicable adverse impact (i.e., mitigation) on the species, its habitat, and on the availability of the species for subsistence uses; and

    (3) Requirements for monitoring and reporting.

    (f) Issuance of the LOA shall be based on a determination that the level of taking will be consistent with the findings made for the total taking allowable under these regulations.

    (g) Notice of issuance or denial of an LOA shall be published in the Federal Register within 30 days of a determination.

    § 217.8 Renewals and modifications of Letters of Authorization.

    (a) An LOA issued under §§ 216.106 and 217.7 of this chapter for the activity identified in § 217.1(a) shall be renewed or modified upon request by the applicant, provided that:

    (1) The proposed specified activity and mitigation, monitoring, and reporting measures, as well as the anticipated impacts, are the same as those described and analyzed for these regulations (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section), and

    (2) NMFS determines that the mitigation, monitoring, and reporting measures required by the previous LOA under these regulations were implemented.

    (b) For an LOA modification or renewal requests by the applicant that include changes to the activity or the mitigation, monitoring, or reporting (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section) that do not change the findings made for the regulations or result in no more than a minor change in the total estimated number of takes (or distribution by species or years), NMFS may publish a notice of proposed LOA in the Federal Register, including the associated analysis of the change, and solicit public comment before issuing the LOA.

    (c) An LOA issued under §§ 216.106 and 217.7 of this chapter for the activity identified in § 217.1(a) may be modified by NMFS under the following circumstances:

    (1) Adaptive Management—NMFS may modify (including augment) the existing mitigation, monitoring, or reporting measures (after consulting with SCWA regarding the practicability of the modifications) if doing so creates a reasonable likelihood of more effectively accomplishing the goals of the mitigation and monitoring set forth in the preamble for these regulations.

    (i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or reporting measures in an LOA:

    (A) Results from SCWA's monitoring from the previous year(s).

    (B) Results from other marine mammal and/or sound research or studies.

    (C) Any information that reveals marine mammals may have been taken in a manner, extent or number not authorized by these regulations or subsequent LOAs.

    (ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS will publish a notice of proposed LOA in the Federal Register and solicit public comment.

    (2) Emergencies—If NMFS determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in LOAs issued pursuant to §§ 216.106 and 217.7 of this chapter, an LOA may be modified without prior notice or opportunity for public comment. Notice would be published in the Federal Register within thirty days of the action.

    §§ 217.9-217.10 [Reserved]
    [FR Doc. 2016-31592 Filed 12-29-16; 8:45 am] BILLING CODE 3510-22-P
    81 251 Friday, December 30, 2016 Notices DEPARTMENT OF AGRICULTURE Submission for OMB Review; Comment Request December 27, 2016.

    The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments are requested regarding (1) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.

    Comments regarding this information collection received by January 30, 2017 will be considered. Written comments should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), New Executive Office Building, 725 17th Street NW., Washington, DC 20502. Commenters are encouraged to submit their comments to OMB via email to: [email protected] or fax (202) 395-5806 and to Departmental Clearance Office, USDA, OCIO, Mail Stop 7602, Washington, DC 20250-7602. Copies of the submission(s) may be obtained by calling (202) 720-8958.

    An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.

    Rural Business-Cooperative Service

    Title: Rural Economic Development Loan and Grant Program.

    OMB Control Number: 0570-0035.

    Summary of Collection: The information collected is necessary to implement Section 313(b) (2) of the Rural Electrification Act of 1936 (7 U.S.C. 940(c)) that established a loan and grant program. Rural Business Service (RBS) mission is to improve the quality of life in rural America by financing community facilities and businesses, providing technical assistance and creating effective strategies for rural development. Under this program, zero interest loans and grants are provided to electric and telecommunications utilities that have borrowed funds from RUS. The purpose of the program is to encourage these electric and telecommunications utilities to promote rural economic development and job creation projects such as business start-up costs, business expansion, community development, and business incubator projects.

    Need and Use of the Information: Various forms and narrative requirements will be used to collect the necessary information. RBS needs this collected information to select the projects it believes will provide the most long-term economic benefit to rural areas. The selection process is competitive and RBS has generally received more applications than it could fund. RBS also needs to make sure the funds are used for the intended purpose, and in the case of the loan, the funds will be repaid. RBS must determine that loans made from revolving loan funds established with grants are used for eligible purposes.

    Description of Respondents: Not-for-profit Institutions; Business or other for-profit.

    Number of Respondents: 120.

    Frequency of Responses: Reporting: On Occasion, Annually.

    Total Burden Hours: 4,781.

    Rural Business-Cooperative Service

    Title: Rural Micro-Entrepreneur Assistance Program.

    OMB Control Number: 0570-0062.

    Summary of Collection: Section 6022 of the Food, Conservation, and Energy Act of 2008 (2008 Farm Bill) authorizes the Rural Microentrepreneur Assistance Program (RMAP). The Secretary makes direct loans to rural microenterprise development organizations (MDOs) that are participating in the program (who are referred to as “microlenders”) for the purpose of capitalizing microloan revolving funds to provide fixed interest rate business loans of $50,000 or less to microentrepreneurs, as defined in the 2008 Farm Bill.

    Need and Use of the Information: The program provides rural microentrepreneurs with the skills necessary to establish new rural microenterprises; to provide continuing technical and financial assistance related to the successful operation of rural microenterprises; and to assist with the cost of providing other activities and services related to the successful operation of MDOs and rural microenterprises. Microlenders seeking loans and/or grants will have to submit applications that include specified information, certifications, and agreements to the Agency. This information will be used to determine applicant eligibility and to ensure that funds are used for authorized purposes.

    Description of Respondents: Business or other for-profit; Not-for-profit Institutions; State, Local or Tribal governments.

    Number of Respondents: 75.

    Frequency of Responses: Reporting: Quarterly, Annually.

    Total Burden Hours: 3,254.

    Charlene Parker, Departmental Information Collection Clearance Officer.
    [FR Doc. 2016-31692 Filed 12-29-16; 8:45 am] BILLING CODE 3410-XY-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-821-801] Solid Urea From the Russian Federation: Rescission of Antidumping Duty Administrative Review; 2015-2016 AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    The Department of Commerce (the Department) is rescinding the administrative review of the antidumping duty order on solid urea from the Russian Federation for the period of July 1, 2015 through June 30, 2016.

    DATES:

    Effective December 30, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Brian Smith or Denisa Ursu, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-1766 or (202) 482-2285, respectively.

    SUPPLEMENTARY INFORMATION:

    Background

    On July 5, 2016, the Department published in the Federal Register a notice of “Opportunity to Request Administrative Review” of the antidumping duty order on solid urea from the Russian Federation for the period of July 1, 2015 through June 30, 2016.1 On July 29 2016, in accordance with section 751(a) of the Tariff Act of 1930, as amended (the Act), and 19 CFR 351.213(b), the Department received a timely request from the petitioners, the Ad Hoc Committee of Domestic Nitrogen Producers and its individual members, CF Industries, Inc. and PCS Nitrogen Fertilizer L.P., to conduct an administrative review of the antidumping duty order on solid urea from the Russian Federation manufactured or exported by MCC EuroChem, or its urea production subsidiaries OJSC Nevinnomysskiy Azot and OJSC NAKAzot (MCC EuroChem), and Joint Stock Company PhosAgro-Cherepovets.2

    1See Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity to Request Administrative Review, 81 FR 43584 (July 5, 2016).

    2See Petitioner's letter, “Solid Urea from the Russian Federation; Request for Administrative Review,” dated July 29, 2016.

    On September 12, 2016, the Department published in the Federal Register a notice of initiation of an administrative review of the antidumping duty order.3 This administrative review covers MCC EuroChem and Joint Stock Company PhosAgro-Cherepovets during the period July 1, 2015 through June 30, 2016. On November 21, 2016, the petitioners timely withdrew their request for an administrative review for both MCC EuroChem and Joint Stock Company PhosAgro-Cherepovets.4

    3See Initiation of Antidumping and Countervailing Duty Administrative Reviews, 81 FR 62720 (September 12, 2016).

    4See Letter from Counsel to the Ad Hoc Committee of Domestic Nitrogen Producers dated November 21, 2016.

    Rescission of Review

    Pursuant to 19 CFR 351.213(d)(1), the Department will rescind an administrative review, if the party that requested the review withdraws its request within 90 days of the date of publication of notice of initiation of the requested review. The petitioner withdrew its review request before the 90-day deadline, and no other party requested an administrative review of the antidumping duty order. Therefore, in response to the timely withdrawal of the review request, the Department is rescinding in its entirety the administrative review of the antidumping duty order on solid urea from the Russian Federation for the review period July 1, 2015 through June 30, 2016.

    Assessment

    The Department will instruct U.S. Customs and Border Protection (CBP) to assess antidumping duties on all appropriate entries. Antidumping duties shall be assessed at rates equal to the cash deposit of estimated antidumping duties required at the time of entry, or withdrawal from warehouse, for consumption, in accordance with 19 CFR 351.212(c)(1)(i). The Department intends to issue appropriate assessment instructions directly to CBP 15 days after the date of publication of this notice in the Federal Register.

    Notification to Importers

    This notice serves as the only reminder to importers whose entries will be liquidated as a result of this rescission notice, of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties and/or countervailing duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement may result in the presumption that reimbursement of antidumping duties and/or countervailing duties occurred and the subsequent assessment of double antidumping duties.

    Notification Regarding Administrative Protective Order

    This notice serves as the only reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.

    This notice is published in accordance with section 751 of the Act and 19 CFR 351.213(d)(4).

    Dated: December 23, 2016. Paul Piquado, Assistant Secretary for Enforcement and Compliance.
    [FR Doc. 2016-31718 Filed 12-29-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-821-801, A-823-801] Solid Urea From the Russian Federation and Ukraine: Final Results of Sunset Reviews and Revocation of Antidumping Duty Orders AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    On November 1, 2016, the Department of Commerce (Department) initiated the sunset reviews of the antidumping duty orders on solid urea from the Russian Federation and Ukraine. Because the domestic interested parties did not participate in these sunset reviews, the Department is revoking these antidumping duty orders.

    DATES:

    Effective December 20, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Robert James or John Anwesen, AD/CVD Operations, Office VIII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: 202-482-0649 and 202-482-0131, respectively.

    SUPPLEMENTARY INFORMATION:

    Background

    On July 14, 1987, the Department issued an antidumping duty order on solid urea from the Union of Soviet Socialist Republics (USSR).1 In December 1991, the USSR divided into 15 republics. In response to the dissolution, the Department transferred the original order to all 15 republics and applied a uniform cash deposit rate.2

    1See Urea from the Union of Soviet Socialist Republics, 52 FR 26367 (July 14, 1987).

    2See Solid Urea from the Union of Soviet Socialist Republics; Transfer of the Antidumping Duty Order on Solid Urea from the Union of Soviet Socialist Republics to the Commonwealth of Independent States and the Baltic States and Opportunity to Comment, 57 FR 28828 (June 29, 1992).

    On March 1, 1999, the Department initiated sunset reviews on these orders and later published its notice of continuation of the antidumping duty orders for certain countries.3 On October 1, 2004, the Department initiated the second sunset reviews of these orders and later published its notice of continuation of the antidumping duty orders on solid urea from the Russian Federation and Ukraine.4 On December 1, 2010, the Department initiated the third sunset reviews of these orders and later published its notice of continuation of the antidumping duty orders.5 On November 1, 2016, the Department initiated the fourth sunset reviews of these orders.6

    3See Continuation of Antidumping Duty Orders: Solid Urea from Belarus, Estonia, Lithuania, Romania, Russia, Tajikistan, Turkmenistan, Ukraine, and Uzbekistan, 64 FR 62653 (November 17, 1999); see also Antidumping Duty Order; Urea from the Socialist Republic of Romania, 52 FR 2636 (July 14, 1987) and Final Results of Expedited Sunset Review: Solid Urea from Romania, 64 FR 48360 (September 3, 1999) (Because Romania was not part of the USSR, the initial investigation and the first five-year review on urea from Romania were conducted separately, but the continuation order combined the remaining former Soviet Socialist Republics and Romania together.); Revocation of Antidumping Duty Order: Solid Urea from Armenia, 64 FR 62654 (November 17, 1999); March 1999 Sunset Reviews: Final Results and Revocations, 64 FR 24137 (May 5, 1999) (revoking the antidumping duty orders on solid urea from Azerbaijan, Georgia, Kazakhstan, Kyrgyzstan, and Moldova); and March and April 1999 Sunset Reviews: Final Results and Revocations, 64 FR 28974 (May 28, 1999) (revoking the antidumping duty order on solid urea from Latvia).

    4See Notice of Continuation of Antidumping Duty Orders: Solid Urea from the Russian Federation and Ukraine, 71 FR 581 (January 5, 2006); see also Solid Urea from Belarus, Estonia, Lithuania, Romania, Tajikistan, Turkmenistan, and Uzbekistan: Final Results and Revocation of Orders, 69 FR 77993 (December 29, 2004).

    5Solid Urea from the Russian Federation and Ukraine: Continuation of Antidumping Duty Orders, 76 FR 78885 (December 20, 2011).

    6 See Initiation of Five-Year (“Sunset”) Reviews, 81 FR 75808 (November 1, 2016).

    We did not receive a notice of intent to participate from domestic interested parties in these fourth sunset reviews by the deadline date.7 As a result, the Department determined that no domestic interested party intends to participate in the sunset reviews,8 and on November 21, 2016, we notified the International Trade Commission, in writing, that we intended to issue a final determination revoking these antidumping duty orders.9 On December 1, 2016, the Department received a submission from the Ministry of Economic Development and Trade of Ukraine regarding its position on this matter.10

    7See 19 CFR 351.218(d)(1)(i).

    8See 19 CFR 351.218(d)(1)(iii)(A).

    9See 19 CFR 351.218(d)(1)(iii)(B)(2).

    10See Letter from Ministry of Economic Development and Trade of Ukraine, “Solid Urea from Ukraine, 4th Sunset Review: A-823-801,” dated December 1, 2016.

    Scope of the Orders

    The merchandise subject to the orders is solid urea, a high-nitrogen content fertilizer which is produced by reacting ammonia with carbon dioxide. The product is currently classified under the Harmonized Tariff Schedule of the United States (HTSUS) item number 3102.10.00.00. Previously such merchandise was classified under item number 480.3000 of the Tariff Schedules of the United States. Although the HTSUS subheading is provided for convenience and customs purposes, the written description of the merchandise subject to the orders is dispositive.

    Determination To Revoke

    Pursuant to section 751(c)(3)(A) of the Tariff Act of 1930, as amended (the Act), and 19 CFR 351.218(d)(1)(iii)(B)(3), if no domestic interested party files a notice of intent to participate, the Department shall, within 90 days after the initiation of the review, issue a final determination revoking the order. Because the domestic interested parties did not file a notice of intent to participate in these sunset reviews, the Department finds that no domestic interested party is participating in these sunset reviews. Therefore, consistent with 19 CFR 351.222(i)(2)(i) we are revoking these antidumping duty orders effective December 20, 2016, the fifth anniversary of the date the Department published its most recent notice of continuation of the antidumping duty orders.

    Effective Date of Revocation

    Pursuant to section 751(c)(3)(A) of the Act and 19 CFR 351.222(i)(2)(i), the Department will instruct U.S. Customs and Border Protection to terminate the suspension of liquidation of the merchandise subject to these orders entered, or withdrawn from warehouse, on or after December 20, 2016. Entries of subject merchandise prior to the effective date of revocation will continue to be subject to suspension of liquidation and antidumping duty deposit requirements. The Department will complete any pending administrative reviews of these orders and will conduct administrative reviews of subject merchandise entered prior to the effective date of revocation in response to appropriately filed requests for review.

    We are issuing and publishing the final determination in these five-year (sunset) reviews and notice in accordance with sections 751(c) and 777(i)(1) of the Act.

    Dated: December 23, 2016. Paul Piquado, Assistant Secretary for Enforcement and Compliance.
    [FR Doc. 2016-31719 Filed 12-29-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-580-810] Welded ASTM A-312 Stainless Steel Pipe From the Republic of Korea: Preliminary Results of Antidumping Duty Administrative Review; 2014-2015 AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    The Department of Commerce (Department) is conducting an administrative review of the antidumping duty order on welded ASTM A-312 stainless steel pipe from Republic of Korea (Korea). The period of review (POR) is December 1, 2014, through November 30, 2015. The review covers two exporters and/or producers of the subject merchandise: SeAH Steel Corporation (SeAH) and LS Metal Co., Ltd. (LS Metal). The Department preliminarily determines that during the POR SeAH made sales of subject merchandise at less than normal value and LS Metal had no shipments. We invite interested parties to comment on these preliminary results.

    DATES:

    Effective December 30, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Lingjun Wang, AD/CVD Operations, Office VII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-2316.

    SUPPLEMENTARY INFORMATION: Background

    On February 9, 2016, the Department published a notice of initiation of this review.1 On January 27, 2016, the Department exercised its discretion to toll all administrative deadlines by four business days.2 On May 3, 2016 and December 13, 2016, the Department extended the deadline for the preliminary results to December 20, 2016.3 For a complete description of the events that followed the initiation of this review, see the Preliminary Decision Memorandum.4 A list of topics included in the Preliminary Decision Memorandum is included as Appendix I.

    1See Initiation of Antidumping and Countervailing Duty Administrative Reviews, 81 FR 6832 (February 9, 2016).

    2See the Department's January 27, 2016 memorandum, “Tolling of Administrative Deadlines as a Result of the Government Closure during Snowstorm `Jonas.' ”

    3See the Department's August 15, 2016 memorandum, “Certain Welded ASTM A-312 Stainless Steel Pipe from the Republic of Korea: Extension of Deadline for Preliminary Results of Antidumping Duty Administrative Review;” see also, the Department's December 13, 2016 memorandum, “Certain Welded ASTM A-312 Stainless Steel Pipe from the Republic of Korea: Extension of Deadline for Preliminary Results of Antidumping Duty Administrative Review.”

    4See “Decision Memorandum for the Preliminary Results of the Antidumping Duty Administrative Review: Welded ASTM A-312 Stainless Steel Pipe from the Republic of Korea; 2014-2015,” dated concurrently with this notice (Preliminary Decision Memorandum).

    Scope of the Order

    The products covered by this order are shipments of welded austenitic stainless steel pipe (WSSP) from Korea that meets the standards and specifications set forth by the American Society for Testing and Materials (ASTM) for the welded form of chromium-nickel pipe designated ASTM A-312. Imports of these products are currently classifiable under the following United States Harmonized Tariff Schedule (HTSUS) subheadings: 7306.40.5005, 7306.40.5015, 7306.40.5040, 7306.40.5065, and 7306.40.5085.5

    5 For a full description of the scope of the Order, see Preliminary Decision Memorandum.

    Preliminary Determination of No Shipments

    LS Metal, in its questionnaire response, claimed that it made no sales or shipments of subject merchandise during the POR. We issued a no shipments inquiry to, and received no contradictory information from, U.S. Customs and Border Protection (CBP). As there is no record information contrary to LS Metal's claim, we preliminarily determine that LS Metal had no shipments of the subject merchandise and, therefore, no reviewable transactions during the POR. The Department intends to complete the review with respect to LS Metal and will issue appropriate instructions to CBP based on the final results of this review. See the Preliminary Decision Memorandum for further discussion of this issue.

    Methodology

    The Department is conducting this review in accordance with section 751(a)(2) of the Tariff Act of 1930, as amended (the Act). Constructed export prices or export prices are calculated in accordance with section 772 of the Act. Normal value is calculated in accordance with section 773 of the Act.

    For a full description of the methodology underlying these preliminary results, see the Preliminary Decision Memorandum. A list of the topics discussed in the Preliminary Decision Memorandum is attached as an appendix to this notice. The Preliminary Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at https://access.trade.gov, and is available to all parties in the Central Records Unit, room B8024 of the Department's main building. In addition, a complete version of the Preliminary Decision Memorandum can be accessed directly on the internet at http://www.trade.gov/enforcement/. The signed Preliminary Decision Memorandum and the electronic versions of the Preliminary Decision Memorandum are identical in content.

    Preliminary Results of Review

    As a result of this review, we preliminarily determine that the weighted-average dumping margin for the POR is as follows:

    Producer and/or exporter Margin
  • (percent)
  • SeAH Steel Corporation 1.91
    Assessment Rate

    Upon issuance of the final results, the Department shall determine, and CBP shall assess, antidumping duties on all appropriate entries covered by this review. For any individually examined respondents whose weighted-average dumping margin is above de minimis, we will calculate importer-specific ad valorem duty assessment rates based on the ratio of the total amount of dumping calculated for the importer's examined sales to the total entered value of those same sales in accordance with 19 CFR 351.212(b)(1).6 We will instruct CBP to assess antidumping duties on all appropriate entries covered by this review when the importer-specific assessment rate calculated in the final results is above de minimis (i.e., 0.50 percent). Where either the respondent's weighted-average dumping margin is zero or de minimis, or an importer-specific assessment rate is zero or de minimis, we will instruct CBP to liquidate the appropriate entries without regard to antidumping duties. The final results of this review shall be the basis for the assessment of antidumping duties on entries of merchandise covered by the final results of this review where applicable.

    6See Antidumping Proceedings: Calculation of the Weighted-Average Dumping Margin and Assessment Rate in Certain Antidumping Proceedings: Final Modification, 77 FR 8101, 8102 (February 14, 2012).

    The Department clarified its “automatic assessment” regulation on May 6, 2003.7 This clarification applies to entries of subject merchandise during the POR produced by a respondent for which it did not know its merchandise was destined for the United States. In such instances, we will instruct CBP to liquidate unreviewed entries at the all-others rate if there is no rate for the intermediate company or companies involved in the transaction.

    7 For a full discussion of this clarification, see Antidumping and Countervailing Duty Proceedings: Assessment of Antidumping Duties, 68 FR 23954 (May 6, 2003) (Assessment Policy Notice).

    We intend to issue instructions to CBP 15 days after publication of the final results of this review.

    Cash Deposit Requirements

    The following cash deposit requirements will be effective upon publication of the notice of final results of this review for all shipments of subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided by section 751(a)(2)(C) of the Act: (1) The cash deposit rate for the companies under review will be equal to the weighted-average dumping margin established in the final results of this review except if that rate is de minimis within the meaning of 19 CFR 351.106(c)(1), in which case the cash deposit rate will be zero; (2) for merchandise exported by manufacturers or exporters not covered in this review but covered in a prior completed segment of the proceeding, the cash deposit rate will continue to be the company-specific rate published for the most recently completed segment of this proceeding in which the manufacturer or exporter participated; (3) if the exporter is not a firm covered in this review, a prior review, or the original investigation, but the manufacturer is, then the cash deposit rate will be the rate established for the most recently completed segment of this proceeding for the manufacturer of the merchandise; and (4) if neither the exporter nor the manufacturer is a firm covered in this or any previously completed segment of this proceeding, then the cash deposit rate will be the “all-others” rate of 7.00 percent established in the Amended Final Determination and Order. 8 These deposit requirements, when imposed, shall remain in effect until further notice.

    8See Notice of Amended Final Determination and Antidumping Duty Order: Certain Welded Stainless Steel Pipe from the Republic of Korea, 60 FR 10064 (February 23, 1995) (Amended Final Determination and Order).

    Disclosure and Public Comment

    The Department intends to disclose the calculations performed in connection with these preliminary results within five days after the date of publication of this notice in accordance with 19 CFR 351.224(b).

    Interested parties may submit case briefs no later than 30 days after the publication date of this notice.9 Rebuttal briefs, limited to issues raised in the case briefs, may be filed not later than five days after the date for filing case briefs.10 Parties who submit case briefs or rebuttal briefs are requested to submit with each argument: (1) A statement of the issue; (2) a brief summary of the argument; and (3) a table of authorities.11 Executive summaries should be limited to five pages total, including footnotes.12 All briefs must be filed electronically via ACCESS.13 An electronically filed document must be received successfully in its entirety by ACCESS, by 5:00 p.m. Eastern Time on the on which it is due.14

    9See 19 CFR 351.303 (for general filing requirements).

    10See 19 CFR 351.309(c) and (d).

    11See 19 CFR 351.309(c)(2) and (d)(2).

    12Id.

    13See 19 CFR 351.303.

    14See 19 CFR 351.303(b)(1).

    Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing must submit a written request to the Assistant Secretary for Enforcement and Compliance within 30 days of the publication date of this notice, filed electronically via ACCESS. Requests should contain: (1) The party's name, address and telephone number; (2) the number of participants; and (3) a list of issues parties intend to discuss. Issues raised in the hearing will be limited to those raised in the respective case and rebuttal briefs. If a request for a hearing is made, the Department intends to hold the hearing at the U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230, at a date and time to be determined.15 Parties should confirm by telephone the date, time, and location of the hearing two days before the scheduled date.

    15See 19 CFR 351.310(d).

    We intend to issue the final results of this review within 120 days after the date of publication of this notice, unless otherwise extended.16

    16See section 751(a)(3)(A) of the Act and 19 CFR 351.213(h)(1).

    Notification to Importers

    This notice serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Department's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of doubled antidumping duties.

    Notification to Interested Parties

    These preliminary results of this review are issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.213(h).

    Dated: December 20, 2016. Paul Piquado, Assistant Secretary for Enforcement and Compliance. Appendix—List of Topics Discussed in the Preliminary Decision Memorandum: I. Summary II. Background III. Scope of the Order IV. No Shipments V. Discussion of Methodology A. Comparisons to Normal Value B. Date of Sale C. Product Comparisons D. Constructed Export Price E. Normal Value F. Cost of Production Analysis G. Calculation of Normal Value Based on Comparison Market Prices H. Currency Conversion VI. Recommendation
    [FR Doc. 2016-31728 Filed 12-29-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XF068 Fisheries Off West Coast States; Pacific Coast Groundfish Fishery; Application for an Exempted Fishing Permit (EFP) AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Notice; receipt of EFP application; request for comments.

    SUMMARY:

    NMFS announces the receipt of an exempted fishing permit (EFP) application from the West Coast Seafood Processors Association, Environmental Defense Fund, Oregon Trawl Commission, and Pacific Seafoods for an EFP Program to monitor and minimize salmon bycatch when vessels target rockfish in the shorebased individual fishing quota (IFQ) fishery. The NMFS West Coast Region's Assistant Regional Administrator for Sustainable Fisheries has made a preliminary determination that the subject EFP application contains all the required information and the EFP Program warrants further consideration. Therefore, NMFS announces that the Assistant Regional Administrator for Sustainable Fisheries proposes to recommend that EFPs be issued under an EFP Program that would allow as many as 50 commercial fishing vessels to conduct fishing operations that are otherwise restricted by the regulations governing the fisheries of the west coast of the United States. If awarded, the EFP Program would exempt participating limited entry bottom trawl vessels from the requirement to use selective flatfish trawl gear shoreward of the Trawl Rockfish Conservation Area (RCA) north of 40°10′ N. latitude in waters off the west coast. In addition, if awarded, the EFP Program would also allow participating bottom trawl vessels that fish any place along the west coast an exemption to the minimum mesh size requirement of 4.5 inches.

    The EFP Program is intended to provide additional flexibility in the configuration and use of bottom trawl gear for the vessels, as well as provide additional information on potential impacts to protected resources, particularly Chinook salmon bycatch, resulting from this added flexibility. The additional information would be used to enhance the management of the groundfish fishery and promote the objectives of the Pacific Coast Groundfish Fishery Management Plan (FMP). This EFP would be effective for 2017 and would expire no later than December 31, 2017, but could be terminated earlier under the terms and conditions of the EFP and other applicable laws. Additionally, NMFS, with input from the Pacific Fishery Management Council (Council), may extend the EFP beyond 2017, if appropriate. Regulations under the Magnuson-Stevens Fishery Conservation and Management Act require publication of this notification to provide interested parties the opportunity to comment on applications for proposed EFPs.

    DATES:

    Comments must be received no later than 5 p.m., local time on January 24, 2017.

    ADDRESSES:

    You may submit comments, identified by 0648-XF068, by any one of the following methods:

    Email: [email protected].

    Mail: Barry Thom, Regional Administrator, West Coast Region, NMFS, 7600 Sand Point Way NE., Seattle, WA 98115-0070, Attn: Melissa Hooper.

    FOR FURTHER INFORMATION CONTACT:

    Melissa Hooper: (206) 526-4357 or [email protected]

    SUPPLEMENTARY INFORMATION:

    This action is authorized by the FMP and implementing regulations at 50 CFR 600.745, which states that EFPs may be used to authorize fishing activities that would otherwise be prohibited.

    If awarded, the EFP Program would give participating vessels an exemption from the current requirement at 50 CFR 660.130(b)(3)(ii)(A) to use selective flatfish trawl gear shoreward of the RCA and north of 40°10′ N. lat. EFP vessels would instead be subject to a small footrope requirement similar to what is required south of 40°10′ N. lat. Additionally, if awarded, the EFP Program would give participating vessels an exemption from the current requirement at 50 CFR 660.130(b)(2) to use a 4.5 inch (11.4 cm) mesh throughout the net for bottom trawl vessels with a Federal limited entry permit. Participating vessels would carry observers or electronic monitoring on 100-percent of trips, as is currently required in the IFQ program.

    This exempted fishing activity is designed to provide participants with additional flexibility to configure their gear to re-establish a targeted rockfish fishery for widow, yellowtail, and chilipepper rockfish. The annual catch limits (ACLs) for both widow and chilipepper rockfish are increasing to levels not seen in several years, and the additional fish available could provide an opportunity for the redevelopment of processing and harvesting in those areas of the coast that had been constrained by the lower ACLs for these overfished species. Additionally, according to the applicants, the two-seam design of the nets can make it difficult to include some types of bycatch excluders. Eliminating the selective flatfish trawl gear requirement could provide vessels with more flexibility in designing their gear and would increase the opportunity for using bycatch reduction devices of different types.

    Changes to the minimum mesh size would provide participating vessels with the flexibility to set their mesh size for the size of fish they intend to target. It is unlikely that vessels would set their mesh size much lower than the current minimum of 4.5 inches as smaller fish tend to be less marketable. However, a smaller mesh size may reduce the number of fish that are gilled (i.e. stuck in the mesh) and, as a result, are unmarketable.

    Information collected during under the EFP Program would be used to support the analysis for potential new and modification to existing gear regulations, including the Council's trawl gear modifications regulatory amendment which the Council took final action on earlier in 2016. With many of the current gear regulations having been in place for more than ten years, it is difficult for NMFS, the Council, and industry to predict the impacts of removing these regulations. In the past ten years, the industry has changed significantly. Reduction in capacity, innovations in gear technologies, and changes in management have all contributed to these changes. The EFP Program would help demonstrate what potential impacts today's fleet could have when some of the current gear regulations are eliminated.

    In the early 1990s, the Council redefined bottom trawl gear and established 4.5 inches as the minimum mesh size for bottom trawl codends coastwide, and then required the larger mesh throughout the remainder of the trawl nets. These initial mesh regulations were intended to: (1) Reduce the harvest of small and unmarketable fish, (2) reduce the incidental harvest of unwanted species, and (3) establish a standard, coastwide mesh requirement. However, the two different sizes throughout the mesh created a loophole for some vessels. By 1995, regulations were implemented by the Council to address this loophole. The new regulations required all bottom trawl nets to have a minimum of 4.5 inch mesh throughout the net (60 FR 13377, March 13, 1995). These measures were intended to give smaller-size fish the opportunity to escape from the entire trawl net, reducing the likelihood those fish would be caught.

    Beginning in 2005, the Council required the use of selective flatfish trawl for all groundfish trawling on the west coast north of 40°10′ N. lat. shoreward of the RCA. The selective flatfish trawl gear was originally designed and implemented to reduce the bycatch of round fish, such as canary rockfish and salmon, while increasing the catch of flatfish species. Previously, management actions to protect vulnerable rockfish had greatly expanded the boundaries of the trawl RCA, moving the eastern boundary shoreward. These changes, while addressing the issues with vulnerable rockfish, also severely limited access to productive flatfish stocks. Selective flatfish trawl was seen as a way for the fleet to still access the fishing grounds while protecting the vulnerable rockfish species.

    NMFS is concerned with the potential impacts a selective flatfish trawl exemption and minimum mesh size exemption may have on protected species. Available information suggests that bycatch rates of ESA-listed salmon, eulachon, and green sturgeon could increase as a result of the increased effort resulting from this EFP Program. NMFS is focused on developing an EFP that would meet the applicants' objectives to better target pelagic rockfish species while collecting information about bycatch and minimizing bycatch to the extent practicable. To address NMFS' concerns, the applicants are proposing that bycatch information, as well as haul level data and genetics will be collected on all salmon caught. Because a targeted fishery for chilipepper, widow, and yellowtail rockfish has not existed in more than a decade, there is limited information about expected bycatch in these target fisheries. The applicants are proposing that all salmon caught under this EFP Program would be counted against a salmon bycatch limit set by the NMFS for the EFP.

    The applicants are proposing the following additional measures to minimize and monitor bycatch under the EFP Program:

    Enrollment provisions—Vessels will be required to contact NMFS prior to a specified deadline to enroll in the EFP for a minimum of one month. Vessels may opt in or out of the EFP Program on a monthly basis only, with the exception of the month of May, by notifying NMFS. During May, vessels using midwater gear after May 15th must declare out before they begin to use the gear and can only declare back in once they revert back to bottom trawl gear.

    Salmon bycatch provisions—Vessels will be required to operate under a 3,500 Chinook salmon bycatch cap under this EFP, and a specific Chinook salmon sub-cap of 595 Chinook (17 percent of the total Chinook salmon cap) on EFP Program trips south of 43° N, also known as the Eureka Management Area. Once the sub-cap limit is reached, the Eureka Management Area would be closed to participating vessels, but participating vessels could continue to fish under this EFP north of 43° N. If the Chinook salmon bycatch cap for the EFP Program (3,500 Chinook) is reached, the entire EFP Program would be closed for the remainder of the year. Vessels will be required to retain and land all salmon bycatch on all trips that fall under this EFP. Vessels participating in the EFP Program are also required to provide all salmon bycatch information as quickly as possible and without any restrictions on confidentiality.

    Monitoring provisions—Vessels participating in this EFP will be required to use 100 percent monitoring on all EFP Program trips, as is consistent with the requirements of the shoreside IFQ fishery. Vessels carrying observers must continue to sort their salmon bycatch by haul. Vessels participating in both the electronic monitoring EFP Program and this EFP Program must continue using the same monitoring and reporting provisions required under the electronic monitoring EFP Program. All vessels, regardless of using electronic monitoring or observers, will be required to have 100 percent shoreside monitoring.

    Real-Time Bycatch Monitoring provisions—The participating vessels would work with Pacific States Marine Fisheries Commission to provide real-time, or close to it, monitoring of salmon bycatch on all EFP Program trips through fishtickets and shoreside monitoring reports. The reports would include number of landing events (total and since last report) and number of Chinook salmon landed (total and since last report).

    Fleet accountability provisions—In this EFP, the applicants have developed rules and definitions for bycatch avoidance and mitigation. These include definitions of a “high bycatch tow”, “adult salmon”, and “high bycatch trip.” Bycatch avoidances measures include moving locations when experiencing a “high bycatch tow” and a “stand down” rule where a participating vessel would have to declare out of the EFP Program following a series of high bycatch trips as defined in the application.

    Area-based Avoidance provisions—The EFP Program includes provisions regarding two closed areas:

    ○ Klamath River Salmon Conservation Zone—The Klamath River Conservation Zone, as defined in regulation at 50 CFR 660.131(c)(1), will be closed to participating vessels for the duration of the EFP Program.

    ○ Columbia River Salmon Conservation Zone—The Columbia River Salmon Conservation Zone, as defined in regulation at 50 CFR 660.131(c)(2), will be closed to participating vessels for the duration of the EFP Program.

    The Pacific Fishery Management Council reviewed the EFP application at its September and November 2016 meetings and recommended that NMFS issue permits, under this EFP Program, as proposed with the following amendments:

    • Set the Chinook salmon bycatch limit for this EFP Program at no more than 4,000 fish.

    • Include a sub-limit of 17 percent, or 680 Chinook, for the Eureka management area.

    • Remove the provision to trigger a closure of the Columbia River Salmon Conservation Zone to EFP fishing when 1,000 Chinook have been caught by EFP participants.

    • Include the following criteria in the definition of a high bycatch trip: 1 adult Chinook (defined as 20 inches or greater) caught in the California portion of the Klamath Management Zone (KMZ) defined consistent with salmon regulations as waters from the California/Oregon border south to Horse Mountain.

    • Vessels could fish concurrently under both this EFP Program and the electronic monitoring EFP Program.

    • Participants must submit an informal report for the April 2017 Council meeting and a formal report for the June 2017 Council meeting.

    • The permits under this EFP Program will not automatically renew for the 2018 year, but a resubmission of an application can be made to the Council in September 2017.

    The applicants have not proposed a specific list of participating vessels, as is traditionally the case, but rather are proposing an overall EFP program that any vessel in the fleet could enroll in by applying to NMFS. Depending on the diversity of interested vessels, NMFS may need to develop several EFPs within the overall EFP program to accommodate different protocols for different gear configurations and monitoring types (e.g., electronic monitoring vs. observers). Therefore, NMFS is proposing to approve an overall EFP program, covering all of the individual EFPs, with consistent general requirements following the conclusion of the public comment period. Subsequently, we will issue the actual permits for the EFPs to individual participants according to the nature of their fishing activities. NMFS intends to use an adaptive management approach in which NMFS may revise requirements and protocols to improve the program without issuing another Federal Register notice, provided that the modifications fall within the scope of the original EFP Program. In addition, the applicants may request minor modifications and extensions to the EFP Program throughout the course of research. EFP Program modifications and extensions may be granted without further public notice if they are deemed essential to facilitate completion of the proposed research and result in only a minimal change in the scope or impacts of the initially approved EFP request.

    In accordance with NAO Administrative Order 216-6, a Categorical Exclusion or other appropriate National Environmental Policy Act document would be completed prior to the issuance of any permits under this EFP Program. Further review and consultation may be necessary before a final determination is made to issue the permits. After publication of this document in the Federal Register, the EFP Program, if approved by NMFS, may be implemented following the public comment period. NMFS will consider comments submitted, as well as the Council's discussion at their November 2016 Council meeting, in deciding whether or not to approve the application as requested. NMFS may approve the application in its entirety or may make any alternations needed to achieve the goals of the EFP Program.

    Authority:

    16 U.S.C. 1801 et seq., 16 U.S.C. 773 et seq., and 16 U.S.C. 7001 et seq.

    Dated: December 27, 2016. Alan D. Risenhoover, Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-31704 Filed 12-29-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration Submission for OMB Review; Comment Request

    The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).

    Agency: National Oceanic and Atmospheric Administration (NOAA).

    Title: American Lobster—Annual Trap Transfer Program.

    OMB Control Number: 0648-0673.

    Form Number(s): None.

    Type of Request: Regular (revision and extension of a currently approved information collection).

    Number of Respondents: 204.

    Average Hours Per Response: 10 minutes.

    Burden Hours: 17.

    Needs and Uses: This is a request for revision and extension of a currently approved information collection.

    The American lobster resource and fishery are cooperatively managed by the states and NMFS under the authority of the Atlantic Coastal Fisheries Cooperative Management Act, according to the framework set forth by the Atlantic States Marine Fisheries Commission (ASMFC) in Amendment 3 of its Interstate Fishery Management Plan (ISFMP). This collection of information is in response to several addenda to Amendment 3 of the ISFMP that work to reduce trap fishing effort through limited entry fishing and trap allocation limit reductions. This program is intended to help control fishing efforts while increasing economic flexibility in the American lobster trap fishery.

    Currently, Federal lobster permit holders qualified to fish with trap gear in Lobster Conservation Management Areas 2 and 3 are undergoing scheduled annual trap allocation reductions of 5 percent per year until 2021 (Area 2) and 2020 (Area 3). In 2015, in an effort to help mitigate the initial economic burden of these reductions, NMFS and state agencies implemented the Lobster Trap Transfer Program that allows all qualified Federal lobster permit holders to buy and sell trap allocation from Areas 2, 3, or Outer Cape Cod. Each transaction includes a conservation tax of 10 percent, which deducts a number of traps equal to 10 percent of the total number of traps with each transfer, permanently removing them from the fishery.

    NMFS collects annual application forms from Lobster permit holders who wish to buy and/or sell Area 2, 3, or Outer Cape trap allocation through the Trap Transfer Program. The transfer applications are only accepted during a 2-month period (from August 1 through September 30) each year, and the revised allocations for each participating lobster permit resulting from the transfers become effective at the start of the following Federal lobster fishing year, on May 1. Both the seller and buyer of the traps are required to sign the application form, which includes each permit holder's permit and vessel information, the number of traps sold, and the revised number of traps received by the buyer, inclusive of the amount removed according to the transfer tax. The parties must date the document and clearly show that the transferring permit holder has sufficient allocation to transfer and the permit holder receiving the traps has sufficient room under any applicable trap cap. This information allows NMFS to process and track transfers of lobster trap allocations through the Trap Transfer Program, and better enables the monitoring and management of the American lobster fishery as a whole.

    Originally, this collection was part of a new rulemaking action, and included efforts to obtain information from American lobster permit holders to implement a limited access permit program. NMFS used the information to qualify permit holders for participation in Area 2 and/or the Outer Cape Area, and to allocate traps to each qualified permit. This limited access portion of the collection is complete and no longer necessary, so a revision is requested to remove it from the collection.

    Affected Public: Business or other for-profit organizations; individuals or households; state, local or tribal governments.

    Frequency: On occasion.

    Respondent's Obligation: Required to obtain or retain benefits.

    This information collection request may be viewed at reginfo.gov. Follow the instructions to view Department of Commerce collections currently under review by OMB.

    Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to [email protected] or fax to (202) 395-5806.

    Dated: December 27, 2016. Sarah Brabson, NOAA PRA Clearance Officer.
    [FR Doc. 2016-31716 Filed 12-29-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Telecommunications and Information Administration BroadbandUSA Webinar Series AGENCY:

    National Telecommunications and Information Administration, U.S. Department of Commerce.

    ACTION:

    Notice of Open Meetings; Monthly Webinars.

    SUMMARY:

    The National Telecommunications and Information Administration (NTIA), as part of its BroadbandUSA program, will host a series of webinars on a monthly basis to engage the public and stakeholders with information to accelerate broadband access, improve digital inclusion, strengthen policies, and support local community priorities. The webinar series will provide ongoing source information on the range of topics and issues being addressed by BroadbandUSA, including best practices for improving broadband deployment, digital literacy, and e-government.

    DATES:

    BroadbandUSA will hold the webinars from 2:00 p.m. to 3:00 p.m. Eastern Time on the third Wednesday of every month, beginning February 15, 2017, and continuing through September 20, 2017.

    ADDRESSES:

    These are virtual meetings. NTIA will post the registration information on its BroadbandUSA Web site, http://www2.ntia.doc.gov/, under Events.

    FOR FURTHER INFORMATION CONTACT:

    Lynn Chadwick, National Telecommunications and Information Administration, U.S. Department of Commerce, Room 4627, 1401 Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-8338; email: [email protected] Please direct media inquiries to NTIA's Office of Public Affairs, (202) 482-7002; email [email protected]

    SUPPLEMENTARY INFORMATION:

    NTIA's BroadbandUSA program provides expert advice and field-proven tools for assessing broadband adoption, planning new infrastructure and engaging a wide range of partners in broadband projects. BroadbandUSA convenes workshops on a regular basis to bring stakeholders together to discuss ways to improve broadband policies, share best practices, and connect communities to other federal agencies and funding sources for the purpose of expanding broadband infrastructure and adoption throughout America's communities. Experts from NTIA's BroadbandUSA program are available to provide technical assistance and to connect communities with additional resources, such as best practices, guides and program models. NTIA's BroadbandUSA team is developing tools to support communities working to expand broadband access, adoption and use. These webinars are among the tools BroadbandUSA uses to provide broadband information to the public, broadband stakeholders, tribal, local, and state governments, and federal programs. Other tools include publications, workshops, meetings and co-hosted events with stakeholder organizations and agencies.

    The public is invited to participate in these webinars. General questions and comments are welcome at any time via email to [email protected] The webinars are open to the public and press. Pre-registration is recommended. NTIA asks registrants to provide their first and last names, city, state, organization, job title, and email addresses for both registration purposes and to receive any updates on BroadbandUSA via email at [email protected] Information on webinar content and how to register for one or more webinars will available on NTIA's Web site at http://www2.ntia.doc.gov/WEBINARS.

    Individuals requiring accommodations should review the PowerPoint slides, transcript and recording from the webinar posted at the BroadbandUSA Web site, http://www2.ntia.doc.gov/, within 7 days following the live webinar.

    Dated: December 27, 2016. Kathy D. Smith, Chief Counsel, National Telecommunications and Information Administration.
    [FR Doc. 2016-31717 Filed 12-29-16; 8:45 am] BILLING CODE 3510-60-P
    COMMITTEE FOR PURCHASE FROM PEOPLE WHO ARE BLIND OR SEVERELY DISABLED Procurement List; Deletions AGENCY:

    Committee for Purchase From People Who Are Blind or Severely Disabled.

    ACTION:

    Deletions from the Procurement List.

    SUMMARY:

    This action deletes products and services from the Procurement List that will be furnished by nonprofit agencies employing persons who are blind or have other severe disabilities.

    DATES:

    Effective January 29, 2017.

    ADDRESSES:

    Committee for Purchase From People Who Are Blind or Severely Disabled, 1401 S. Clark Street, Suite 715, Arlington, Virginia, 22202-4149.

    FOR FURTHER INFORMATION CONTACT:

    Barry S. Lineback, Telephone: (703) 603-7740, Fax: (703) 603-0655, or email [email protected]

    SUPPLEMENTARY INFORMATION:

    Deletions

    On 11/28/2016 (81 FR 85538-85540), the Committee for Purchase From People Who Are Blind or Severely Disabled published notice of proposed deletions from the Procurement List.

    After consideration of the relevant matter presented, the Committee has determined that the products and services listed below are no longer suitable for procurement by the Federal Government under 41 U.S.C. 8501-8506 and 41 CFR 51-2.4.

    Regulatory Flexibility Act Certification

    I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:

    1. The action will not result in additional reporting, recordkeeping or other compliance requirements for small entities.

    2. The action may result in authorizing small entities to furnish the products and services to the Government.

    3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 8501-8506) in connection with the products and services deleted from the Procurement List.

    End of Certification

    Accordingly, the following products and services are deleted from the Procurement List:

    Products NSN(s)—Product Name(s): Combat Identification Panel (CIP) Kits and Components 2320-01-484-7838 2590-01-540-1552 2590-01-539-4003 2320-00-NSH-0003 2320-01-398-5161 2350-01-398-5164 2350-01-398-5165 2350-01-398-5166 2350-01-398-5167 2350-01-398-5169 2350-01-398-5172 2350-01-398-5175 2350-01-398-5176 2350-01-398-5177 2350-01-398-5179 2320-01-398-7187 2320-01-398-7189 2320-01-398-7191 2320-01-398-7192 2320-01-398-7193 2320-01-398-7194 2320-01-398-7195 2320-01-398-7196 2350-01-398-7198 2320-01-406-0481 2320-01-411-2566 2320-01-411-4390 2320-01-411-4391 2320-01-411-4393 2320-01-483-9051 2320-01-484-7833 2320-01-484-7836 2320-01-484-8700 2320-01-501-9531 2350-01-392-1565 2350-01-394-2530 2350-01-394-7838 2590-01-421-7060 2350-01-421-7067 2590-01-392-0285 2590-01-392-0286 2590-01-392-0287 2590-01-392-6898 2590-01-394-5635 2590-01-394-5638 2590-01-394-7635 2590-01-394-7636 2590-01-398-3172 2590-01-398-3836 2590-01-398-3838 2590-01-398-3839 2590-01-398-3841 2590-01-398-3843 2590-01-398-3844 2590-01-398-3846 2590-01-398-6291 2590-01-398-6718 2590-01-398-6723 2590-01-398-6724 2590-01-398-6729 2590-01-398-6730 2590-01-398-6731 2590-01-398-6732 2590-01-398-6733 2590-01-398-6734 2590-01-398-6735 2590-01-398-6736 2590-01-398-6737 2590-01-398-6738 2590-01-398-6741 2590-01-398-6742 2590-01-398-6745 2590-01-398-6747 2590-01-398-6749 2590-01-398-8072 2590-01-398-8073 2590-01-398-8074 2590-01-398-8076 2590-01-398-8077 2590-01-398-8079 2590-01-398-8081 2590-01-398-8082 2590-01-398-8084 2590-01-398-8085 2590-01-398-8087 2590-01-398-8088 2590-01-398-8090 2590-01-399-1362 2590-01-399-1363 2590-01-399-1364 2590-01-399-1365 2590-01-399-2933 2590-01-399-2934 2590-01-399-5100 2590-01-399-5863 2590-01-399-5864 2590-01-399-5865 2590-01-399-5866 2590-01-399-5867 2590-01-399-7502 2590-01-400-0372 2350-01-400-1810 2590-01-411-3170 2590-01-411-3171 2590-01-411-3172 2590-01-411-3174 2590-01-420-2877 2590-01-420-2878 2590-01-420-5984 2590-01-484-8507 2590-01-501-9505 2590-01-501-9557 2590-01-501-XXXX 2590-01-507-XXXX 2320-01-398-7198 2350-01-398-5174 2350-01-399-6773 2350-01-598-5170 2590-01-394-2530 2590-01-398-5161 2590-01-398-5164 2590-01-398-5165 2590-01-398-5166 2590-01-398-5172 2590-01-398-7187 2590-01-398-7189 2590-01-398-7191 2590-01-398-7192 2590-01-398-7193 2590-01-398-7194 2590-01-398-7195 2590-01-398-7196 2590-01-398-8083 2590-01-399-6773 2590-01-406-0481 2590-01-411-2566 2590-01-411-4390 2590-01-411-4391 2320-01-472-5882 2590-01-472-5889 Mandatory Source(s) of Supply: Crossroads Rehabilitation Center, Inc., Indianapolis, IN Contracting Activity: W4GG HQ US ARMY TACOM NSN(s)—Product Name(s): 4220-01-181-3154—Fishing Kit, Emergency Mandatory Source(s) of Supply: Opportunity Resources, Inc., Missoula, MT Contracting Activity: Defense Logistics Agency Troop Support Services Service Type: Mail Delivery Service Mandatory for: 11 Army Secure Operating Systems: 22019 53rd Street, Building 22019, Fort Hood, TX 712 Army Secure Operating Systems: 22020 53rd Street, Building 22020, Fort Hood, TX 9 Army Secure Operating Systems & 3 WS: 90042 Clarke Road, Building 90042, Fort Hood, TX Dormitory: Building 91220, Fort Hood, TX III Corps Building: 1001 761st Tank Battalion Avenue Fort Hood, TX Mandatory Source(s) of Supply: Professional Contract Services, Inc., Austin, TX Contracting Activity: DEPT OF THE AIR FORCE, FA4608 2 CONS LGC Service Type: Secure Document Destruction Service Mandatory for: Internal Revenue Service Offices at the following locations: 124 South Tennessee, Lakeland, FL 129 Hibiscus Boulevard, Melbourne, FL Mandatory Source(s) of Supply: Brevard Achievement Center, Inc., Rockledge, FL Mandatory for: 10 Spiral Drive, Florence, KY Mandatory Source(s) of Supply: Employment Solutions, Inc., Lexington, KY Contracting Activity: Dept of the Treasury/Internal Revenue Service Barry S. Lineback, Director, Business Operations.
    [FR Doc. 2016-31732 Filed 12-29-16; 8:45 am] BILLING CODE 6353-01-P
    COMMITTEE FOR PURCHASE FROM PEOPLE WHO ARE BLIND OR SEVERELY DISABLED Procurement List; Proposed Additions and Deletions AGENCY:

    Committee for Purchase From People Who Are Blind or Severely Disabled.

    ACTION:

    Proposed additions to and deletions from the procurement list.

    SUMMARY:

    The Committee is proposing to add products to the Procurement List that will be furnished by nonprofit agencies employing persons who are blind or have other severe disabilities, and deletes products previously furnished by such agency.

    DATES:

    Comments must be received on or before January 29, 2017.

    ADDRESSES:

    Committee for Purchase From People Who Are Blind or Severely Disabled, 1401 S. Clark Street, Suite 715, Arlington, Virginia 22202-4149.

    FOR FURTHER INFORMATION CONTACT:

    Barry S. Lineback, Telephone: (703) 603-7740, Fax: (703) 603-0655, or email [email protected].

    SUPPLEMENTARY INFORMATION:

    This notice is published pursuant to 41 U.S.C. 8503(a)(2) and 41 CFR 51-2.3. Its purpose is to provide interested persons an opportunity to submit comments on the proposed actions.

    Additions

    If the Committee approves the proposed additions, the entities of the Federal Government identified in this notice will be required to procure the products listed below from nonprofit agencies employing persons who are blind or have other severe disabilities.

    The following products are proposed for addition to the Procurement List for production by the nonprofit agencies listed:

    Products NSN(s)—Product Name(s): 9905-00-NIB-0376—Flag, Marking, 21/2″ x 31/2″, 21″ Staff, Fluorescent Orange 9905-00-NIB-0377—Flag, Marking, 21/2″ x 31/2″, 21″ Staff, Fluorescent Pink 9905-00-NIB-0378—Flag, Marking, 21/2″ x 31/2″, 21″ Staff, Orange 9905-00-NIB-0379—Flag, Marking, 21/2″ x 31/2″, 21″ Staff, Red 9905-00-NIB-0380—Flag, Marking, 21/2″ x 31/2″, 21″ Staff, Yellow 9905-00-NIB-0384—Flag, Marking, 21/2″ x 31/2″, 15″ Staff, Yellow 9905-00-NIB-0386—Flag, Marking, 21/2″ x 31/2″, 15″ Staff, Red 9905-00-NIB-0387—Flag, Marking, 21/2″ x 31/2″, 15″ Staff, Orange 9905-00-NIB-0389—Flag, Marking, 4″ x 5″, 21″ Staff, Fluorescent Orange 9905-00-NIB-0390—Flag, Marking, 4″ x 5″, 21″ Staff, Fluorescent Pink 9905-00-NIB-0391—Flag, Marking, 4″ x 5″, 21″ Staff, Orange 9905-00-NIB-0392—Flag, Marking, 4″ x 5″, 21″ Staff, Red 9905-00-NIB-0393—Flag, Marking, 4″ x 5″, 21″ Staff, Yellow Mandatory for: Total Government Requirement Mandatory Source(s) of Supply: West Texas Lighthouse for the Blind, San Angelo, TX Contracting Activity: General Services Administration, Fort Worth, TX Distribution: B-List NSN(s)—Product Name(s): 6530-00-NIB-0209—Hot Pack, Instant, Disposable, 6″ x 8″ 6530-00-NIB-0217—Cold Pack, Instant, Disposable, 5″ x 6″ 6530-00-NIB-0219—Cold Pack, Instant, Disposable, 5″ x 7″ 6530-00-NIB-0221—Cold Pack, Instant, Disposable, 6″ x 8.75″ 6530-00-NIB-0222—Hot Pack, Instant, Disposable, 5″ x 6″ 6530-00-NIB-0223—Hot Pack, Instant, Disposable, 5″ x 7″ Mandatory Source(s) of Supply: Central Association for the Blind and Visually Impaired, Utica, NY Mandatory for: Total Government Requirement Contracting Activity: Defense Logistics Agency Troop Support Distribution: B-List Deletions

    The following products are proposed for deletion from the Procurement List:

    Products NSN(s)—Product Name(s): 8410-01-415-2906—Slacks, Serge, Army, Women's, Green, 4MR 8410-01-415-2909—Slacks, Serge, Army, Women's, Green, 6WR 8410-01-415-2911—Slacks, Serge, Army, Women's, Green, 6MR 8410-01-415-5138—Slacks, Serge, Army, Women's, Green, 6MT 8410-01-415-5139—Slacks, Serge, Army, Women's, Green, 6WT 8410-01-415-5140—Slacks, Serge, Army, Women's, Green, 8WR 8410-01-415-5141—Slacks, Serge, Army, Women's, Green, 8MR 8410-01-415-5142—Slacks, Serge, Army, Women's, Green, 8WP 8410-01-415-5143—Slacks, Serge, Army, Women's, Green, 10MT 8410-01-415-5144—Slacks, Serge, Army, Women's, Green, 8MT 8410-01-415-5145—Slacks, Serge, Army, Women's, Green, 10JR 8410-01-415-6989—Slacks, Serge, Army, Women's, Green, 10WR 8410-01-415-6990—Slacks, Serge, Army, Women's, Green, 10MR 8410-01-415-6991—Slacks, Serge, Army, Women's, Green, 12MP 8410-01-415-6992—Slacks, Serge, Army, Women's, Green, 10JT 8410-01-415-6993—Slacks, Serge, Army, Women's, Green, 10MT 8410-01-415-6994—Slacks, Serge, Army, Women's, Green, 12WP 8410-01-415-6995—Slacks, Serge, Army, Women's, Green, 12JT 8410-01-415-6996—Slacks, Serge, Army, Women's, Green, 14WP 8410-01-415-6997—Slacks, Serge, Army, Women's, Green, 14JR 8410-01-415-6998—Slacks, Serge, Army, Women's, Green, 14JP 8410-01-415-6999—Slacks, Serge, Army, Women's, Green, 14MR 8410-01-415-7000—Slacks, Serge, Army, Women's, Green, 14WR 8410-01-415-7001—Slacks, Serge, Army, Women's, Green, 14WT 8410-01-415-7007—Slacks, Serge, Army, Women's, Green, 16JP 8410-01-415-7008—Slacks, Serge, Army, Women's, Green, 16WR 8410-01-415-7009—Slacks, Serge, Army, Women's, Green, 16MR 8410-01-415-7010—Slacks, Serge, Army, Women's, Green, 18WR 8410-01-415-7011—Slacks, Serge, Army, Women's, Green, 18MR 8410-01-415-7012—Slacks, Serge, Army, Women's, Green, 14MT 8410-01-415-7013—Slacks, Serge, Army, Women's, Green, 16WT 8410-01-415-7014—Slacks, Serge, Army, Women's, Green, 16MP 8410-01-415-7015—Slacks, Serge, Army, Women's, Green, 16MT 8410-01-415-7016—Slacks, Serge, Army, Women's, Green, 20MR 8410-01-415-7017—Slacks, Serge, Army, Women's, Green, 14JT 8410-01-415-7018—Slacks, Serge, Army, Women's, Green, 26MR 8410-01-415-7019—Slacks, Serge, Army, Women's, Green, 18MT 8410-01-415-7021—Slacks, Serge, Army, Women's, Green, 12MR 8410-01-415-7022—Slacks, Serge, Army, Women's, Green, 16JR 8410-01-415-7024—Slacks, Serge, Army, Women's, Green, 16JR 8410-01-415-7025—Slacks, Serge, Army, Women's, Green, 22MR 8410-01-415-7026—Slacks, Serge, Army, Women's, Green, 24MR 8410-01-415-7028—Slacks, Serge, Army, Women's, Green, 12JR 8410-01-415-7029—Slacks, Serge, Army, Women's, Green, 12WR 8410-01-415-7030—Slacks, Serge, Army, Women's, Green, 16JT 8410-01-415-8446—Slacks, Serge, Army, Women's, Green, 10WT 8410-01-415-8450—Slacks, Serge, Army, Women's, Green, 12JP 8410-01-415-8453—Slacks, Serge, Army, Women's, Green, 12MT 8410-01-415-8455—Slacks, Serge, Army, Women's, Green, 12WT 8410-01-415-8457—Slacks, Serge, Army, Women's, Green, 14MP 8410-01-415-8460—Slacks, Serge, Army, Women's, Green, 16WP 8410-01-415-8572—Slacks, Serge, Army, Women's, Green, 10JP 8410-01-415-8573—Slacks, Serge, Army, Women's, Green, 10WP 8410-01-455-5486—Slacks, Serge, Army, Women's, Green, 4MP 8410-01-455-5488—Slacks, Serge, Army, Women's, Green, 6MP 8410-01-455-5490—Slacks, Serge, Army, Women's, Green, 6WP 8410-01-455-5494—Slacks, Serge, Army, Women's, Green, 8MP 8410-01-455-5496—Slacks, Serge, Army, Women's, Green, 8WP 8410-01-455-5500—Slacks, Serge, Army, Women's, Green, 20WR Mandatory Source(s) of Supply: VGS, Inc., Cleveland, OH Contracting Activity: Defense Logistics Agency Troop Support
    Barry S. Lineback, Director, Business Operations.
    [FR Doc. 2016-31721 Filed 12-29-16; 8:45 am] BILLING CODE 6353-01-P
    DEPARTMENT OF DEFENSE Defense Acquisition Regulations System [Docket Number DARS-2016-0040; OMB Control Number 0704-0232] Information Collection Requirement; Defense Federal Acquisition Regulation Supplement, Contract Pricing AGENCY:

    Defense Acquisition Regulations System, Department of Defense (DoD).

    ACTION:

    Notice and request for comments regarding a proposed extension of an approved information collection requirement.

    SUMMARY:

    DoD announces the proposed extension of a public information collection requirement and seeks public comment on the provisions thereof. The Office of Management and Budget (OMB) has approved this information collection requirement for use through March 31, 2017. DoD proposes that OMB extend its approval for an additional three years.

    DATES:

    DoD will consider all comments received by February 28, 2017.

    ADDRESSES:

    You may submit comments, identified by OMB Control Number 0704-0232 regarding this public burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden, using any of the following methods:

    Federal eRulemaking portal: http://www.regulations.gov. Follow the instructions for submitting comments.

    Email: [email protected] Include OMB Control Number 0704-0232 in the subject line of the message.

    Fax: 571-372-6094.

    Mail: Defense Acquisition Regulations System, Attn: Mr. Tom Ruckdaschel, OUSD(AT&L)DPAP/DARS, Room 3B941, 3060 Defense Pentagon, Washington, DC 20301-3060.

    Comments received generally will be posted without change to http://www.regulations.gov, including any personal information provided. To confirm receipt of your comment(s), please check www.regulations.gov approximately two to three days after submission to verify posting. Please allow 30 days for posting of comments submitted by postal mail.

    FOR FURTHER INFORMATION CONTACT:

    Mr. Tom Ruckdaschel, telephone 571-372-6088. The information collection requirements addresses in this notice are available at http://www.acq.osd.mil/dpap/dars/dfarspgi/current/index.html Paper copies are available from Mr. Tom Ruckdaschel, OUSD (AT&L) DPAP DARS, Room 3B941, 3060 Defense Pentagon, Washington, DC 20301-3060.

    SUPPLEMENTARY INFORMATION:

    In compliance with Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), DoD invites comments on: (a) whether the proposed collection of information is necessary for the proper performance of the functions of DoD, including whether the information will have practical utility; (b) the accuracy of the estimate of the burden of the proposed information collection; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the information collection on respondents, including the use of automated collection techniques or other forms of information technology.

    Title and OMB Number: Defense Federal Acquisition Regulation Supplement (DFARS) Subpart 215.4, Contract Pricing, and related clause at DFARS 252.215; OMB Control Number 0704-0232.

    Needs and Uses: DoD contracting officers use this information to determine if the contractor has an adequate system for generating cost estimates, which forecasts costs based on appropriate source information available at the time, and has the ability to monitor the correction of significant deficiencies. The need for information collection decreases as contractor estimating systems improve and gain contracting officer approval.

    Affected Public: Businesses or other for-profit and not-for-profit institutions.

    Number of Respondents: 302.

    Responses per Respondent: 1.4 (approximately).

    Annual Responses: 427.

    Hours per Response: 40.7 (approximately).

    Estimated Hours: 17,400.

    Frequency: On occasion.

    Summary of Information Collection

    The clause at DFARS 252.215-7002, Cost Estimating System Requirements, requires that certain large business contractors—

    • Establish an acceptable cost estimating system and disclose the estimating system to the administrative contracting officer (ACO) in writing;

    • Maintain the estimating system and disclose significant changes in the system to the ACO on a timely basis; and

    • Respond in writing to written reports from the Government that identify deficiencies in the estimating system.

    Jennifer L. Hawes, Editor, Defense Acquisition Regulations System.
    [FR Doc. 2016-31749 Filed 12-29-16; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF DEFENSE Defense Acquisition Regulations System [Docket Number DARS-2016-0046; OMB Control Number 0704-0359] Information Collection Requirement; Defense Federal Acquisition Regulation Supplement, Contract Financing AGENCY:

    Defense Acquisition Regulations System, Department of Defense (DoD).

    ACTION:

    Notice and request for comments regarding a proposed extension of an approved information collection requirement.

    SUMMARY:

    DoD announces the proposed extension of a public information collection requirement and seeks public comment on the provisions thereof. The Office of Management and Budget (OMB) has approved this information collection requirement for use through March 31, 2017. DoD proposes that OMB extend its approval for an additional three years.

    DATES:

    DoD will consider all comments received by February 28, 2017.

    ADDRESSES:

    You may submit comments, identified by OMB Control Number 0704-0359, using any of the following methods:

    Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.

    Email: [email protected] Include OMB Control Number 0704-0359 in the subject line of the message.

    Fax: 571-372-6094.

    Mail: Defense Acquisition Regulations System, Attn: Mr. Tom Ruckdaschel, OUSD(AT&L)DPAP/DARS, Room 3B941, 3060 Defense Pentagon, Washington, DC 20301-3060.

    Comments received generally will be posted without change to http://www.regulations.gov, including any personal information provided. To confirm receipt of your comment(s), please check www.regulations.gov approximately two to three days after submission to verify posting. Please allow 30 days for posting of comments submitted by postal mail.

    FOR FURTHER INFORMATION CONTACT:

    Mr. Tom Ruckdaschel, telephone 571-372-6088. The information collection requirements addresses in this notice are available at: http://www.acq.osd.mil/dpap/dars/dfarspgi/current/index.html. Paper copies are available from Mr. Tom Ruckdaschel, OUSD (AT&L) DPAP (DARS), Room 3B941, 3060 Defense Pentagon, Washington, DC 20301-3060.

    SUPPLEMENTARY INFORMATION:

    In compliance with Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), DoD invites comments on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of DoD, including whether the information will have practical utility; (b) the accuracy of the estimate of the burden of the proposed information collection; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the information collection on respondents, including the use of automated collection techniques or other forms of information technology.

    Title and OMB Number: Defense Federal Acquisition Regulation Supplement (DFARS) Part 232, Contract Financing and Related Clauses at 252.232; OMB Control Number 0704-0359.

    Needs and Uses:

    DFARS 252.232-7007, Limitation of Government's Obligation. The data submitted by contractors enables contracting officers to calculate improved financing opportunities that will provide benefit to both industry (prime and subcontractor level) and the taxpayer.

    DFARS 252.232-7012, Performance Based Payments—Whole Contract Basis, and 252.232-7013, Performance Based Payments—Deliverable-Item Basis. Contracting officers use the information provided by contractors to create a cash-flow model for use in evaluating alternative financing arrangements. The analysis tool calculates improved financing opportunities that will provide benefit to both industry (prime and subcontractor level) and the taxpayer.

    Affected Public: Businesses or other for-profit and not-for-profit institutions.

    Number of Respondents: 1,800.

    Responses per Respondent: 1.

    Annual Responses: 1,800.

    Average Burden per Response: 1 hour.

    Annual Burden Hours: 1,800.

    Frequency: On occasion.

    Summary of Information Collection

    • DFARS 252.232-7007 is prescribed for use in solicitations and resultant incrementally-funded fixed-price contracts. Paragraph (c) of the clause requires a written notification from the contractor that: (1) States the estimated date when the total amount payable by the Government, including any cost for termination for convenience, will approximate 85 percent of the total amount then allotted to the contract for performance of the applicable items; (2) states an estimate of additional funding, if any, needed to continue performance of applicable line items up to the next scheduled date for allotment of funds, or to a mutually agreed upon substitute date; and (3) advises the contracting officer of the estimated amount of additional funds that will be required for the timely performance of the items funded pursuant to the clause, for a subsequent period as may be specified in the allotment schedule, or otherwise agreed to by the parties to the contract.

    • DFARS 252.232-7012 is prescribed for use at DFARS 232.1005-70(a). This clause requires contractors to report the negotiated value of all previously completed performance-based payments; negotiated value of current performance-based payment(s) event(s); cumulative negotiated value of performance-based payment(s) events completed to date; total costs incurred to date; cumulative amount of payments previously requested; and the payment amount requested for the current performance based payment.

    • DFARS 252.232-7013 is prescribed for use at 232.1005-70(b). This clause requires contractors to report the negotiated value of current performance-based payment(s) event(s); cumulative negotiated value of performance-based payment(s) events completed to date; total costs incurred to date; cumulative amount of payments previously requested; and the payment amount requested for the current performance based payment.

    Jennifer L. Hawes, Editor, Defense Acquisition Regulations System.
    [FR Doc. 2016-31757 Filed 12-29-16; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF DEFENSE Defense Acquisition Regulations System [Docket Number DARS-2016-0039; OMB Control Number 0704-0229] Information Collection Requirement; Defense Federal Acquisition Regulation Supplement, Foreign Acquisition AGENCY:

    Defense Acquisition Regulations System, Department of Defense (DoD).

    ACTION:

    Notice and request for comments regarding a proposed extension of an approved information collection requirement.

    SUMMARY:

    DoD announces the proposed extension of a public information collection requirement and seeks public comment on the provisions thereof. The Office of Management and Budget (OMB) has approved this information collection requirement for use through March 31, 2017. DoD proposes that OMB extend its approval for use for three additional years beyond the current expiration date.

    DATES:

    DoD will consider all comments received by February 28, 2017.

    ADDRESSES:

    You may submit comments, identified by OMB Control Number 0704-0398, using any of the following methods:

    Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.

    Email: [email protected] Include OMB Control Number 0704-0229 in the subject line of the message.

    Fax: 571-372-6094.

    Mail: Defense Acquisition Regulations System, Attn: Ms. Amy Williams, OUSD(AT&L)DPAP/DARS, Room 3B941, 3060 Defense Pentagon, Washington, DC 20301-3060.

    Comments received generally will be posted without change to http://www.regulations.gov, including any personal information provided. To confirm receipt of your comment(s), please check www.regulations.gov approximately two to three days after submission to verify posting. Please allow 30 days for posting of comments submitted by postal mail.

    FOR FURTHER INFORMATION CONTACT:

    Ms. Amy Williams, (571) 372-6106. The information collection requirements addressed in this notice are available on the World Wide Web at: http://www.acq.osd.mil/dpap/dars/dfarspgi/current/index.html. Paper copies are available from Ms. Amy Williams, OUSD(AT&L)DPAP(DARS), Room 3B941, 3060 Defense Pentagon, Washington, DC 20301-3060.

    SUPPLEMENTARY INFORMATION:

    In compliance with Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), DoD invites comments on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of DoD, including whether the information will have practical utility; (b) the accuracy of the estimate of the burden of the proposed information collection; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the information collection on respondents, including the use of automated collection techniques or other forms of information technology.

    Title, Associated Form, and OMB Number: Defense Federal Acquisition Regulation Supplement Part 225, Foreign Acquisition, and Related Clauses at 252.225; DD Form 2139; OMB Control Number 0704-0229.

    Needs and Uses: DoD needs this information to ensure compliance with restrictions on the acquisition of foreign products imposed by statute or policy to protect the industrial base; to ensure compliance with U.S. trade agreements and memoranda of understanding that promote reciprocal trade with U.S. allies; and to prepare reports for submission to the Department of Commerce on the Balance of Payments Program.

    Affected Public: Businesses or other for-profit and not-for-profit institutions.

    Number of Respondents: 26,669.

    Responses Per Respondent: About 10.

    Annual Responses: 263,863.

    Average Burden Per Response: .29 hours.

    Annual Burden Hours: 77,209 (76,944 reporting hours and 265 recordkeeping hours).

    Reporting Frequency: On occasion.

    Summary of Information Collection

    This information collection includes requirements related to foreign acquisition in DFARS Part 225, Foreign Acquisition, and the related clause at DFARS 252.225.

    DFARS 252.225-7000, Buy American Act—Balance of Payments Program Certificate, as prescribed in 225.1101(1), requires an offeror to identify, in its proposal, supplies that are not domestic end products, separately listing qualifying country and other foreign end products.

    DFARS 252.225-7003, Report of Intended Performance Outside the United States and Canada—Submission with Offer, and 252.225-7004, Report of Intended Performance Outside the United States and Canada—Submission after Award, as prescribed in 225.7204(a) and (b) respectively, require offerors and contractors to submit a Report of Contract Performance Outside the United States for subcontracts to be performed outside the United States. The reporting threshold is $700,000 for contracts that exceed $13.5 million. The contractor may submit the report on DD Form 2139, Report of Contract Performance Outside the United States, or a computer-generated report that contains all information required by DD Form 2139.

    DFARS 252.225-7005, Identification of Expenditures in the United States, as prescribed in 225.1103(1), requires contractors incorporated or located in the United States to identify, on each request for payment under contracts for supplies to be used, or for construction or services to be performed, outside the United States, that part of the requested payment representing estimated expenditures in the United States.

    DFARS 252.225-7010, Commercial Derivative Military Article—Specialty Metals Compliance Certificate, as prescribed at 225.7003-5(b), requires the offeror to certify that it will take certain actions with regard to specialty metals if the offeror chooses to use the alternative compliance approach when providing commercial derivative military articles to the Government.

    DFARS 252.225-7013, Duty-Free Entry, as prescribed in 225.1101(4), requires the contractor to provide information on shipping documents and customs forms regarding products that are eligible for duty-free entry.

    DFARS 252.225-7018, Photovoltaic Devices—Certificate, as prescribed at 225.7017-4(b), requires offerors to certify that no photovoltaic devices with an estimated value exceeding $3,000 will be utilized in performance of the contract or to specify the country of origin.

    DFARS 252.225-7020, Trade Agreements Certificate, as prescribed in 225.1101(5), requires an offeror to list the item number and country of origin of any nondesignated country end product that it intends to furnish under the contract. Either 252.225-7020 or 252.225-7022 is used in any solicitation for products subject to the World Trade Organization Government Procurement Agreement.

    DFARS 252.225-7021, Alternate II, Trade Agreements, as prescribed in 225.1101(6)(ii), in order to comply with a condition of the waiver authority provided by the United States Trade Representative to the Secretary of Defense, requires contractors from a south Caucasus/central or south Asian state to inform the government of its participation in the acquisition and also advise their governments that they generally will not have such opportunities in the future unless their governments provide reciprocal procurement opportunities to U.S. products and services and suppliers of such products and services.

    DFARS 252.225-7023, Preference for Products or Services from Afghanistan, as prescribed in 225.7703-5(a), requires an offeror to identify, in its proposal, products or services that are not products or services from Iraq or Afghanistan.

    DFARS 252.225-7025, Restriction on Acquisition of Forgings, as prescribed in 225.7102-4, requires the contractor to retain records showing compliance with the requirement that end items and their components delivered under the contract contain forging items that are of domestic manufacture only. The contractor must retain the records for 3 years after final payment and must make the records available upon request of the contracting officer. The contractor may request a waiver of this requirement in accordance with DFARS 225.7102-3.

    DFARS 252.225-7032, Waiver of United Kingdom Levies—Evaluation of Offers, and 252.225-7033, Waiver of United Kingdom Levies, as prescribed in 225.1101(7) and (8), require an offeror to provide information to the contracting officer regarding any United Kingdom levies included in the offered price, and require the contractor to provide information to the contracting officer regarding any United Kingdom levies to be included in a subcontract that exceeds $1 million, before award of the subcontract.

    DFARS 252.225-7035, Buy American Act—North American Free Trade Agreement Implementation Act—Balance of Payments Program Certificate, as prescribed in 225.1101(9), requires an offeror to list any qualifying country, NAFTA country, or other foreign end product that it intends to furnish under the contract. The Buy American Act no longer applies to acquisitions of commercial information technology.

    DFARS 252.225-7046, Exports of Approved Community Members in Response to the Solicitation, requires a representation whether exports or transfers of qualifying defense articles were made in preparing the response to the solicitation. If yes, the offeror represents that such exports or transfers complied with the requirements of the provision.

    Jennifer L. Hawes, Editor, Defense Acquisition Regulations System.
    [FR Doc. 2016-31744 Filed 12-29-16; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF EDUCATION [Docket No.: ED-2016-ICCD-0147] Agency Information Collection Activities; Comment Request; Mandatory Civil Rights Data Collection AGENCY:

    Office for Civil Rights (OCR), Department of Education (ED).

    ACTION:

    Notice.

    SUMMARY:

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 3501 et seq.), ED is proposing a revision of an existing information collection.

    DATES:

    Interested persons are invited to submit comments on or before February 28, 2017.

    ADDRESSES:

    To access and review all the documents related to the information collection listed in this notice, please use http://www.regulations.gov by searching the Docket ID number ED-2016-ICCD-0147. Comments submitted in response to this notice should be submitted electronically through the Federal eRulemaking Portal at http://www.regulations.gov by selecting the Docket ID number or via postal mail, commercial delivery, or hand delivery. Please note that comments submitted by fax or email and those submitted after the comment period will not be accepted. Written requests for information or comments submitted by postal mail or delivery should be addressed to the Director of the Information Collection Clearance Division, U.S. Department of Education, 400 Maryland Avenue SW., LBJ, Room 224-82, Washington, DC 20202-4537.

    FOR FURTHER INFORMATION CONTACT:

    For specific questions related to collection activities, please contact Rosa Olmeda, 202-453-5968.

    SUPPLEMENTARY INFORMATION:

    The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.

    Title of Collection: Mandatory Civil Rights Data Collection.

    OMB Control Number: 1870-0504.

    Type of Review: A revision of an existing information collection.

    Respondents/Affected Public: State, Local, and Tribal Governments.

    Total Estimated Number of Annual Responses: 17,620.

    Total Estimated Number of Annual Burden Hours: 1,511,450.

    Abstract: The collection, use and reporting of education data is an integral component of the mission of the U.S. Department of Education (ED). EDFacts, an ED initiative to put performance data at the center of ED's policy, management, and budget decision-making processes for all K-12 education programs, has transformed the way in which ED collects and uses data. For school years 2009-10 and 2011-12, the Civil Rights Data Collection (CRDC) was approved by OMB as part of the EDFacts information collection (1875-0240). For school years 2013-14 and 2015-16, the Office for Civil Rights (OCR) cleared the CRDC as a separate collection from EDFacts. OCR used the most current EDFacts information collection approved by OMB (1875-0240) as a model for the 2013-14 and 2015-16 CRDC information collections that were approved by OMB (1870-0504). Similarly, the currently proposed revised CRDC information collection for school year 2017-18 is modeled after the most recent OMB-approved EDFacts information collection (1850-0925). For the 2017-18 CRDC, OCR is proposing few changes, and those changes will have the net effect of reducing burden on school districts. As with previous CRDC collections, the purpose of the 2017-18 CRDC is to obtain vital data related to the civil rights laws' requirement that public local educational agencies and elementary and secondary schools provide equal educational opportunity. ED has analyzed the uses of many data elements collected in the 2013-14 CRDC and sought advice from experts across ED to refine, improve, and where appropriate, add or remove data elements from the collection. ED also made the CRDC data definitions and metrics consistent with other mandatory collections across ED wherever possible. ED seeks OMB approval under the Paperwork Reduction Act to collect from LEAs, the elementary and secondary education data described in the sections of Attachment A. In addition, ED requests that LEAs and other stakeholders respond to the directed questions found in Attachment A-5.

    Dated: December 27, 2016. Stephanie Valentine, Acting Director, Information Collection Clearance Division, Office of the Chief Privacy Officer, Office of Management.
    [FR Doc. 2016-31727 Filed 12-29-16; 8:45 am] BILLING CODE 4000-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. AC16-199-000] Central Kentucky Transmission Company; Notice of Filing

    Take notice that on September 19, 2016, pursuant to Rule 212 of the Federal Energy Regulatory Commission's Rules of Practice and Procedure, 18 CFR 385.212, Central Kentucky Transmission Company submitted a request for a waiver of the reporting requirement to file the FERC Form 2-A for calendar year ending 2016 and all subsequent years; and a waiver of the reporting requirement to file the FERC Form 3-Q for quarter ending September 30, 2016 and all subsequent quarters.

    Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.

    The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at http://www.ferc.gov. Persons unable to file electronically should submit an original and 5 copies of the protest or intervention to the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.

    This filing is accessible on-line at http://www.ferc.gov, using the “eLibrary” link and is available for review in the Commission's Public Reference Room in Washington, DC. There is an “eSubscription” link on the Web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email [email protected], or call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

    Comment Date: January 3, 2017.

    Dated: December 23, 2016. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2016-31656 Filed 12-29-16; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. ER17-623-000] Rubicon NYP Corp; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 Authorization

    This is a supplemental notice in the above-referenced proceeding of Rubicon NYP Corp`s application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.

    Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.

    Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is January 12, 2017.

    The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at http://www.ferc.gov. To facilitate electronic service, persons with Internet access who will eFile a document and/or be listed as a contact for an intervenor must create and validate an eRegistration account using the eRegistration link. Select the eFiling link to log on and submit the intervention or protests.

    Persons unable to file electronically should submit an original and 5 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.

    The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for electronic review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email [email protected] or call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

    Dated: December 23, 2016. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2016-31661 Filed 12-29-16; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. CP17-23-000] Florida Gas Transmission Company, LLC; Notice of Request Under Blanket Authorization

    Take notice that on December 13, 2016, Florida Gas Transmission Company, LLC (FGT), 1300 Main Street, Houston, Texas 77002, filed in Docket No. CP17-23-000 a prior notice request pursuant to sections 157.205, 157.208, and 157.210 of the Commission's regulations under the Natural Gas Act (NGA), as amended, requesting authorization to construct, install, own, maintain, and operate its Western Division Project. Specifically, FGT proposes to construct approximately one mile of 36-inch-diameter pipeline loop, relocate an existing receiver, and install one new mainline valve downstream of Compressor Station 11 in Santa Rosa County, Florida. Additionally, FGT proposes to install approximately 100 feet of 8-inch-diameter connection piping, a custody transfer flange, and other auxiliary and appurtenant facilities at a new interconnection to be constructed with Florida Public Utilities Company (FPU) in Escambia County, Alabama, near the Alabama/Florida border. FGT states that the Western Division Project will provide 68,500 million British thermal units per day of natural gas to FPU and Ascend Performance Materials, Inc. FGT estimates the cost of the Western Division Project to be approximately $10,655,060, all as more fully set forth in the application which is on file with the Commission and open to public inspection. The filing may also be viewed on the web at http://www.ferc.gov using the “eLibrary” link. Enter the docket number excluding the last three digits in the docket number field to access the document. For assistance, please contact FERC Online Support at [email protected] or toll free at (866) 208-3676, or TTY, contact (202) 502-8659.

    Any questions concerning this application may be directed to Stephen T. Veatch, Senior Director of Certificates, Florida Gas Transmission Company, LLC, 1300 Main Street, Houston, Texas 77002, by telephone at (713) 989-2024, by fax at (713) 989-1205, or by email at [email protected]

    Any person or the Commission's staff may, within 60 days after issuance of the instant notice by the Commission, file pursuant to Rule 214 of the Commission's Procedural Rules (18 CFR 385.214) a motion to intervene or notice of intervention and pursuant to section 157.205 of the regulations under the NGA (18 CFR 157.205), a protest to the request. If no protest is filed within the time allowed therefore, the proposed activity shall be deemed to be authorized effective the day after the time allowed for filing a protest. If a protest is filed and not withdrawn within 30 days after the allowed time for filing a protest, the instant request shall be treated as an application for authorization pursuant to section 7 of the NGA.

    Pursuant to section 157.9 of the Commission's rules, 18 CFR 157.9, within 90 days of this Notice the Commission staff will either: Complete its environmental assessment (EA) and place it into the Commission's public record (eLibrary) for this proceeding; or issue a Notice of Schedule for Environmental Review. If a Notice of Schedule for Environmental Review is issued, it will indicate, among other milestones, the anticipated date for the Commission staff's issuance of the final environmental impact statement (FEIS) or EA for this proposal. The filing of the EA in the Commission's public record for this proceeding or the issuance of a Notice of Schedule for Environmental Review will serve to notify federal and state agencies of the timing for the completion of all necessary reviews, and the subsequent need to complete all federal authorizations within 90 days of the date of issuance of the Commission staff's FEIS or EA.

    Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commenter's will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with the Commission's environmental review process. Environmental commenter's will not be required to serve copies of filed documents on all other parties. However, the non-party commentary, will not receive copies of all documents filed by other parties or issued by the Commission (except for the mailing of environmental documents issued by the Commission) and will not have the right to seek court review of the Commission's final order.

    The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the “eFiling” link at http://www.ferc.gov. Persons unable to file electronically should submit an original and 7 copies of the protest or intervention to the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.

    Dated: December 23, 2016. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2016-31659 Filed 12-29-16; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission Combined Notice of Filings #2

    Take notice that the Commission received the following electric corporate filings:

    Docket Numbers: EC17-37-000.

    Applicants: Westar Energy, Inc.

    Description: Supplement to November 18, 2016 Application of Westar Energy, Inc. for Authorization for Consolidation of Jurisdictional Facilities, et al.

    Filed Date: 12/21/16.

    Accession Number: 20161221-5461.

    Comments Due: 5 p.m. ET 12/28/16.

    Take notice that the Commission received the following electric rate filings:

    Docket Numbers: ER11-3376-003; ER11-3377-003; ER11-3378-003.

    Applicants: North Hurlburt Wind, LLC, Horseshoe Bend Wind, LLC, South Hurlburt Wind, LLC.

    Description: Triennial Report for Northwest Region of North Hurlburt Wind, LLC, et. al.

    Filed Date: 12/22/16.

    Accession Number: 20161222-5571.

    Comments Due: 5 p.m. ET 2/21/17.

    Docket Numbers: ER14-225-004.

    Applicants: New Brunswick Energy Marketing Corporation.

    Description: Triennial Market Power Update for the Northeast Region of New Brunswick Energy Marketing Corporation.

    Filed Date: 12/22/16.

    Accession Number: 20161222-5577.

    Comments Due: 5 p.m. ET 2/21/17.

    Docket Numbers: ER17-238-001.

    Applicants: Southwestern Public Service Company.

    Description: Tariff Amendment: SAP Ministerial_Amend to be effective 4/16/2016.

    Filed Date: 12/23/16.

    Accession Number: 20161223-5102.

    Comments Due: 5 p.m. ET 1/13/17.

    Docket Numbers: ER17-267-001.

    Applicants: Southwestern Public Service Company.

    Description: Tariff Amendment: Tri County Formula Rate_Amend to be effective 1/1/2017.

    Filed Date: 12/23/16.

    Accession Number: 20161223-5103.

    Comments Due: 5 p.m. ET 1/13/17.

    Docket Numbers: ER17-478-001.

    Applicants: Mankato Energy Center, LLC.

    Description: Supplement to December 15, 2016 Mankato Energy Center, LLC tariff filing.

    Filed Date: 12/22/16.

    Accession Number: 20161222-5572.

    Comments Due: 5 p.m. ET 1/12/17.

    Docket Numbers: ER17-647-000.

    Applicants: Emera Energy Services Subsidiary No. 11.

    Description: § 205(d) Rate Filing: Tariff Amendment to be effective 2/22/2017.

    Filed Date: 12/23/16.

    Accession Number: 20161223-5141.

    Comments Due: 5 p.m. ET 1/13/17.

    Docket Numbers: ER17-648-000.

    Applicants: Emera Energy Services Subsidiary No. 12.

    Description: § 205(d) Rate Filing: Tariff Amendment to be effective 2/22/2017.

    Filed Date: 12/23/16.

    Accession Number: 20161223-5142.

    Comments Due: 5 p.m. ET 1/13/17.

    Docket Numbers: ER17-649-000.

    Applicants: Emera Energy Services Subsidiary No. 13.

    Description: § 205(d) Rate Filing: Tariff Amendment to be effective 2/22/2017.

    Filed Date: 12/23/16.

    Accession Number: 20161223-5143.

    Comments Due: 5 p.m. ET 1/13/17.

    Docket Numbers: ER17-650-000.

    Applicants: Emera Energy Services Subsidiary No. 14.

    Description: § 205(d) Rate Filing: Tariff Amendment to be effective 2/22/2017.

    Filed Date: 12/23/16.

    Accession Number: 20161223-5144.

    Comments Due: 5 p.m. ET 1/13/17.

    Docket Numbers: ER17-651-000.

    Applicants: Emera Energy Services Subsidiary No. 15.

    Description: § 205(d) Rate Filing: Tariff Amendment to be effective 2/22/2017.

    Filed Date: 12/23/16.

    Accession Number: 20161223-5145.

    Comments Due: 5 p.m. ET 1/13/17.

    Docket Numbers: ER17-652-000.

    Applicants: Lightstone Marketing LLC.

    Description: Baseline eTariff Filing: Lightstone Marketing LLC MBR Application to be effective 1/10/2017.

    Filed Date: 12/23/16.

    Accession Number: 20161223-5158.

    Comments Due: 5 p.m. ET 1/13/17.

    Docket Numbers: ER17-653-000.

    Applicants: Arizona Public Service Company.

    Description: Tariff Cancellation: Cancellation of Rate Schedule No. 272 to be effective 2/22/2017.

    Filed Date: 12/23/16.

    Accession Number: 20161223-5166.

    Comments Due: 5 p.m. ET 1/13/17.

    The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.

    Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.

    eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at: http://www.ferc.gov/docs-filing/efiling/filing-req.pdf. For other information, call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

    Dated: December 23, 2016. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2016-31658 Filed 12-29-16; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. ER17-615-000] Albany Green Energy, LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 Authorization

    This is a supplemental notice in the above-referenced proceeding of Albany Green Energy, LLC`s application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.

    Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.

    Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is January 12, 2017.

    The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at http://www.ferc.gov. To facilitate electronic service, persons with Internet access who will eFile a document and/or be listed as a contact for an intervenor must create and validate an eRegistration account using the eRegistration link. Select the eFiling link to log on and submit the intervention or protests.

    Persons unable to file electronically should submit an original and 5 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.

    The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for electronic review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email [email protected] or call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

    Dated: December 23, 2016. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2016-31660 Filed 12-29-16; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission Combined Notice of Filings #1

    Take notice that the Commission received the following electric rate filings:

    Docket Numbers: ER10-3145-008; ER10-3116-008; ER10-3210-008; ER11-2036-008; ER13-1544-005; ER10-3128-008; ER10-1800-009; ER10-3136-008; ER11-2701-010; ER10-1728-008; ER16-930-002.

    Applicants: AES Alamitos, LLC, AES Energy Storage, LLC, AES Huntington Beach, L.L.C., AES Laurel Mountain, LLC, AES ES Tait, LLC, AES Redondo Beach, L.L.C., Indianapolis Power & Light Company, Mountain View Power Partners, LLC, Mountain View Power Partners IV, LLC, The Dayton Power and Light Company, AES Ohio Generation, LLC.

    Description: Triennial Market Power Analysis for Northeast Region of the AES MBR Affiliates.

    Filed Date: 12/21/16.

    Accession Number: 20161221-5469.

    Comments Due: 5 p.m. ET 2/21/17.

    Docket Numbers: ER10-3246-011; ER10-2475-017; ER10-2474-017; ER13-1266-012; ER15-2211-009.

    Applicants: PacifiCorp, Nevada Power Company, Sierra Pacific Power Company, CalEnergy, LLC, MidAmerican Energy Services, LLC.

    Description: Notice of Non-Material Change in Status of the PacifiCorp, et al.

    Filed Date: 12/21/16.

    Accession Number: 20161221-5471.

    Comments Due: 5 p.m. ET 1/11/17.

    Docket Numbers: ER17-236-001.

    Applicants: Southwestern Public Service Company.

    Description: Tariff Amendment: 12-23-16_ER17-236 Admend to be effective 1/1/2016.

    Filed Date: 12/23/16.

    Accession Number: 20161223-5096.

    Comments Due: 5 p.m. ET 1/13/17.

    Docket Numbers: ER17-646-000.

    Applicants: Orange and Rockland Utilities, Inc.

    Description: § 205(d) Rate Filing: Amendment to Revised Power Supply Agreement to be effective 12/22/2016.

    Filed Date: 12/23/16.

    Accession Number: 20161223-5006.

    Comments Due: 5 p.m. ET 1/13/17.

    The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.

    Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.

    eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at: http://www.ferc.gov/docs-filing/efiling/filing-req.pdf. For other information, call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

    Dated: December 23, 2016. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2016-31657 Filed 12-29-16; 8:45 am] BILLING CODE 6717-01-P
    ENVIRONMENTAL PROTECTION AGENCY [EPA-HQ-OGC-2016-0773; FRL 9957-82-OGC] Proposed Settlement Agreement, Clean Air Act Citizen Suit AGENCY:

    Environmental Protection Agency (EPA)

    ACTION:

    Notice of proposed settlement agreement; request for public comment.

    SUMMARY:

    In accordance with section 113(g) of the Clean Air Act, as amended (“CAA”), notice is hereby given of a proposed settlement agreement to address a consolidated set of petitions for review filed by several parties in the United States Court of Appeals for the Tenth Circuit. Basin Electric Power Cooperative (“Basin Electric”) and the State of Wyoming (“Wyoming”) (collectively, “Petitioners”) filed petitions for review of an EPA rule addressing the regional haze requirements in Wyoming. Specifically, Basin Electric challenged the rule as it pertained to the NOX BART emission limits for Laramie River Units 1-3. Wyoming also challenged the rule based on EPA's action on the Laramie River Units and on other grounds. The proposed settlement agreement would establish deadlines for EPA to take specified actions.

    DATES:

    Written comments on the proposed settlement agreement must be received by January 30, 2017.

    ADDRESSES:

    Submit your comments, identified by Docket ID number EPA-HQ-OGC-2016-0773, online at www.regulations.gov. For comments submitted at www.regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from www.regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (“CBI”) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, please contact the person identified in the For Further Information Contact section. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Lea Anderson, Air and Radiation Law Office (2344A), Office of General Counsel, U.S. Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; telephone: (202) 564-5571; fax number (202) 564-5603; email address: [email protected]

    SUPPLEMENTARY INFORMATION: I. Additional Information About the Proposed Settlement Agreement

    Petitioners filed petitions for review of EPA's rule titled “Approval, Disapproval and Promulgation of Implementation Plans; State of Wyoming; Regional Haze State Implementation Plan; Federal Implementation Plan for Regional Haze,” 79 FR 5032 (Jan. 30, 2014) (“Final Rule”). In the Final Rule, EPA disapproved, in part, the Wyoming regional haze SIP, including the NOX BART requirements as to Laramie River Units 1-3, and promulgated a federal implementation plan (“FIP”) that imposed a NOX BART emission limit of 0.07 lb/MMBtu (30-day rolling average) at Laramie River Units 1-3. Petitioners have raised various challenges to the Final Rule. This settlement agreement would resolve all of Basin Electric's challenges to the Final Rule and those portions of Wyoming's challenge to the Final Rule related to the establishment of NOX BART emission limits for Laramie River Units 1-3.

    Under the terms of the proposed settlement agreement, after the settlement agreement becomes final the parties will take specified actions as provided for in the settlement agreement. Please review the settlement agreement for additional details, available in the public docket at EPA-HQ-OGC-2016-0773.

    For a period of 30 days following the date of publication of this notice, the Agency will receive written comments relating to the proposed settlement agreement from persons who were not named as parties or intervenors to the litigation in question. EPA or the Department of Justice may withdraw or withhold consent to the proposed settlement agreement if the comments disclose facts or considerations that indicate that such consent is inappropriate, improper, inadequate, or inconsistent with the requirements of the Act. Unless EPA or the Department of Justice determines that consent to the agreement should be withdrawn or withheld, the terms of the agreement will be affirmed.

    II. Additional Information About Commenting on the Proposed Settlement Agreement A. How can I get a copy of the proposed settlement agreement?

    The official public docket for this action under Docket ID No. EPA-HQ-OGC-2016-0773 contains a copy of the proposed settlement agreement. The official public docket is available for public viewing at the Office of Environmental Information (OEI) Docket in the EPA Docket Center, EPA West, Room 3334, 1301 Constitution Ave. NW., Washington, DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OEI Docket is (202) 566-1752.

    An electronic version of the public docket is available through www.regulations.gov. You may use the www.regulations.gov to submit or view public comments, access the index listing of the contents of the official public docket, and to access those documents in the public docket that are available electronically. Once in the system, key in the appropriate docket identification number then select “search”.

    It is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing online at www.regulations.gov without change, unless the comment contains copyrighted material, CBI, or other information whose disclosure is restricted by statute. Information claimed as CBI and other information whose disclosure is restricted by statute is not included in the official public docket or in the electronic public docket. EPA's policy is that copyrighted material, including copyrighted material contained in a public comment, will not be placed in EPA's electronic public docket but will be available only in printed, paper form in the official public docket. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the EPA Docket Center.

    B. How and to whom do I submit comments?

    You may submit comments as provided in the ADDRESSES section. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments.

    If you submit an electronic comment, EPA recommends that you include your name, mailing address, and an email address or other contact information in the body of your comment and with any disk or CD-ROM you submit. This ensures that you can be identified as the submitter of the comment and allows EPA to contact you in case EPA cannot read your comment due to technical difficulties or needs further information on the substance of your comment. Any identifying or contact information provided in the body of a comment will be included as part of the comment that is placed in the official public docket, and made available in EPA's electronic public docket. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment.

    Use of the www.regulations.gov Web site to submit comments to EPA electronically is EPA's preferred method for receiving comments. The electronic public docket system is an “anonymous access” system, which means EPA will not know your identity, email address, or other contact information unless you provide it in the body of your comment. In contrast to EPA's electronic public docket, EPA's electronic mail (email) system is not an “anonymous access” system. If you send an email comment directly to the Docket without going through www.regulations.gov, your email address is automatically captured and included as part of the comment that is placed in the official public docket, and made available in EPA's electronic public docket.

    Dated: December 22, 2016. Gautam Srinivasan, Acting Associate General Counsel.
    [FR Doc. 2016-31748 Filed 12-29-16; 8:45 am] BILLING CODE P
    ENVIRONMENTAL PROTECTION AGENCY [ER-FRL-9031-1] Environmental Impact Statements; Notice of Availability

    Responsible Agency: Office of Federal Activities, General Information (202) 564-7146 or http://www.epa.gov/nepa.

    Weekly receipt of Environmental Impact Statements (EISs) Filed 12/19/2016 Through 12/23/2016. Pursuant to 40 CFR 1506.9. Notice

    Section 309(a) of the Clean Air Act requires that EPA make public its comments on EISs issued by other Federal agencies. EPA's comment letters on EISs are available at: http://www.epa.gov/compliance/nepa/eisdata.html.

    EIS No. 20160312, Draft, USFWS, CA, City of San Diego Vernal Pool Habitat Conservation Plan, Comment Period Ends: 03/06/2017, Contact: Dan Cox 916-414-6539. EIS No. 20160313, Final, NASA, FL, Center-wide Operations at the Kennedy Space Center, Review Period Ends: 01/30/2017, Contact: Donald Dankert 321-861-1196. EIS No. 20160314, Draft, USFS, CA, Mitsubishi Cement Corporation South Quarry Plan of Operation, Comment Period Ends: 02/13/2017, Contact: Scott Eliason 909-382-2830. EIS No. 20160315, Draft, FHWA, IL, Interstate 290 (Eisenhower Expressway), Comment Period Ends: 02/13/2017, Contact: Catherine A. Batey 217-492-4600. EIS No. 20160316, Final, Caltrans, FHWA, CA, Eureka Arcata Route 101 Corridor Improvement Project, Review Period Ends: 01/30/2017, Contact: David Tedrick 916-498-5024. EIS No. 20160317, Draft, BLM, NV, Sagebrush Focal Areas Withdrawal, Comment Period Ends: 03/31/2017, Contact: Mark Mackiewicz 801-636-3616. EIS No. 20160318, Final, BR, CA, Bay Delta Conservation Plan/California WaterFix, Review Period Ends: 01/30/2017, Contact: Brooke White 916-414-2402. Dated: December 27, 2016. Dawn Roberts, Management Analyst, NEPA Compliance Division, Office of Federal Activities.
    [FR Doc. 2016-31758 Filed 12-29-16; 8:45 am] BILLING CODE 6560-50-P
    FEDERAL COMMUNICATIONS COMMISSION [OMB 3060-0157 and 3060-1163] Information Collections Being Reviewed by the Federal Communications Commission Under Delegated Authority AGENCY:

    Federal Communications Commission.

    ACTION:

    Notice and request for comments.

    SUMMARY:

    As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995, the Federal Communications Commission (FCC or Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collections. Comments are requested concerning: whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.

    The FCC may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid OMB control number.

    DATES:

    Written PRA comments should be submitted on or before February 28, 2017. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.

    ADDRESSES:

    Direct all PRA comments to Cathy Williams, FCC, via email [email protected] and to [email protected]

    FOR FURTHER INFORMATION CONTACT:

    For additional information about the information collection, contact Cathy Williams at (202) 418-2918.

    SUPPLEMENTARY INFORMATION:

    OMB Control Number: 3060-0157.

    Title: Section 73.99, Presunrise Service Authorization (PSRA) and Postsunset Service Authorization (PSSA).

    Form Number: Not applicable.

    Type of Review: Extension of a currently approved collection.

    Respondents: Business or other for-profit entities.

    Number of Respondents and Responses: 200 respondents; 200 responses.

    Frequency of Response: Annual and on occasion reporting requirements.

    Estimated Time per Response: 0.25 hours.

    Total Annual Burden: 50 hours.

    Total Annual Costs: $15,000.

    Obligation to Respond: Required to obtain or retain benefits. The statutory authority for this collection is contained in Section 154(i) of the Communications Act of 1934, as amended.

    Nature and Extent of Confidentiality: There is no need for confidentiality with this collection of information.

    Privacy Impact Assessment(s): No impact(s).

    Needs and Uses: The information collection requirements contained in 47 CFR 73.99(e) requires the licensee of an AM broadcast station intending to operate with a presunrise or postsunset service authorization to submit by letter to the Commission the licensee's name, call letters, location, the intended service, and a description of the method whereby any necessary power reduction will be achieved. Upon submission of this information, operation may begin without further authority. The FCC staff uses the letter to maintain complete technical information about the station to ensure that the licensee is in full compliance with the Commission's rules and will not cause interference to other stations.

    OMB Control Number: 3060-0288.

    Title: 47 CFR 78.33, Special Temporary Authority (Cable Television Relay Stations).

    Form Number: Not applicable.

    Type of Review: Extension of a currently approved collection.

    Respondents: Business and other for-profit entities.

    Number of Respondents and Responses: 35 respondents and 35 responses.

    Estimated Time per Response: 4 hours.

    Frequency of Response: On occasion reporting requirement.

    Obligation to Respond: Required to obtain or retain benefits. The statutory authority for this collection of information is contained Section 154(i) of the Communications Act of 1934, as amended.

    Total Annual Burden: 140 hours.

    Total Annual Costs: $5,250.

    Nature and Extent of Confidentiality: There is no need for confidentiality with this collection of information.

    Privacy Impact Assessment(s): No impacts.

    Needs and Uses: The information collection requirements contained in 47 CFR 78.33 permits cable television relay station (CARS) operators to file informal requests for special temporary authority (STA) to install and operate equipment in a manner different than the way normally authorized in the station license. The special temporary authority also may be used by cable operators to conduct field surveys to determine necessary data in connection with a formal application for installation of a radio system, or to conduct equipment, program, service, and path tests.

    Federal Communications Commission. Katura Howard, Federal Register Liaison Officer, Office of the Secretary.
    [FR Doc. 2016-31710 Filed 12-29-16; 8:45 am] BILLING CODE 6712-01-P
    FEDERAL COMMUNICATIONS COMMISSION [OMB 3060-0863] Information Collection Being Reviewed by the Federal Communications Commission AGENCY:

    Federal Communications Commission.

    ACTION:

    Notice and request for comments.

    SUMMARY:

    As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995, the Federal Communications Commission (FCC or Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collections. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.

    The FCC may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid OMB control number.

    DATES:

    Written PRA comments should be submitted on or before February 28, 2017. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.

    ADDRESSES:

    Direct all PRA comments to Cathy Williams, FCC, via email [email protected] and to [email protected]

    FOR FURTHER INFORMATION CONTACT:

    For additional information about the information collection, contact Cathy Williams at (202) 418-2918.

    SUPPLEMENTARY INFORMATION:

    OMB Control Number: 3060-0863.

    Title: Satellite Delivery of Network Signals to Unserved Households for Purposes of the Satellite Home Viewer Act.

    Form Number: Not applicable.

    Type of Review: Extension of a currently approved collection.

    Respondents: Business or other for-profit entities.

    Number of Respondents and Responses: 848 respondents; 250,000 responses.

    Estimated Time per Response: 0.50 hours.

    Frequency of Response: Recordkeeping requirement, On occasion reporting requirement.

    Obligation to Respond: Required to obtain or retain benefits. Statutory authority for this information collection action is contained in the Satellite Home Viewer Act, 17 U.S.C. 119. The Satellite Home Viewer Act is an amendment of the Copyright Act; and Satellite Television Extension and Localism Act of 2010, Title V of the “American Workers, State, and Business Relief Act of 2010,” Public Law 111-175, 124 Stat. 1218 (2010) (STELA), see footnote 3.

    Total Annual Burden to Respondents: 125,000 hours.

    Total Annual Costs: None.

    Privacy Impact Assessment(s): No impact(s).

    Nature and Extent of Confidentiality: There is no need for confidentiality with this collection of information.

    Needs and Uses: The information collection requirements contained in 47 CFR 73.686 describes a method for measuring signal strength at a household so that the satellite and broadcast industries would have a uniform method for making an actual determination of the signal strength that a household received. The information gathered as part of the Grade B contour signal strength tests will be used to indicate whether a household is “unserved” by over-the-air network signals.

    Satellite and broadcast industries making field strength measurements for formal submission to the Commission in rulemaking proceedings, or making such measurements upon the request of the Commission, shall follow the procedure for making and reporting such measurements which shall be included in a report to the Commission and submitted in affidavit form, in triplicate. The report shall contain the following information:

    (a) Tables of field strength measurements, which for each measuring location; (b) U.S. Geological Survey topographic maps; (c) All information necessary to determine the pertinent characteristics of the transmitting installation; (d) A list of calibrated equipment used in the field strength survey; (e) A detailed description of the calibration of the measuring equipment, and (f) Terrain profiles in each direction in which measurements were made.

    The information collection requirements contained in 47 CFR 73.686 also requires satellite and broadcast companies to maintain a written record describing, for each location, factors which may affect the recorded field (i.e., the approximate time or measurement, weather, topography, overhead wiring, heights and types of vegetation, buildings and other structures, the orientation of the measuring location, objects of such shape and size that cause shadows or reflections, signals received that arrived from a direction other than that of the transmitter, survey, list of the measured value field strength, time and date of the measurements and signature of the person making the measurements).

    The information collection requirements contained in 47 CFR 73.686(e) describes the procedures for measuring the field strength of digital television signals. These procedures will be used to determine whether a household is eligible to receive a distant digital network signal from a satellite television provider, largely rely on existing, proven methods the Commission has already established for measuring analog television signal strength at any individual location, as set forth in Section 73.686(d) of the existing rules, but include modifications as necessary to accommodate the inherent differences between analog and digital TV signals. The new digital signal measurement procedures include provisions for the location of the measurement antenna, antenna height, signal measurement method, antenna orientation and polarization, and data recording.

    Therefore, satellite and broadcast industries making field strength measurements shall maintain written records and include the following information: (a) A list of calibrated equipment used in the field strength survey, which for each instrument specifies the manufacturer, type, serial number and rated accuracy, and the date of the most recent calibration by the manufacturer or by a laboratory. Include complete details of any instrument not of standard manufacture; (b) A detailed description of the calibration of the measuring equipment, including field strength meters, measuring antenna, and connecting cable; (c) For each spot at the measuring site, all factors which may affect the recorded field, such as topography, height and types of vegetation, buildings, obstacles, weather, and other local features; (d) A description of where the cluster measurements were made; (e) Time and date of the measurements and signature of the person making the measurements; (f) For each channel being measured, a list of the measured value of field strength (in units of dBμ after adjustment for line loss and antenna factor) of the five readings made during the cluster measurement process, with the median value highlighted.

    Federal Communications Commission. Katura Howard, Federal Register Liaison Officer. Office of the Secretary.
    [FR Doc. 2016-31711 Filed 12-29-16; 8:45 am] BILLING CODE 6712-01-P
    FEDERAL COMMUNICATIONS COMMISSION [OMB 3060-XXXX] Information Collection Being Submitted for Review and Approval to the Office of Management and Budget AGENCY:

    Federal Communications Commission.

    ACTION:

    Notice and request for comments.

    SUMMARY:

    As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995, the Federal Communications Commission (FCC or Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collections. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees. The FCC may not conduct or sponsor a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid OMB control number.

    DATES:

    Written comments should be submitted on or before January 30, 2017. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contacts below as soon as possible.

    ADDRESSES:

    Direct all PRA comments to Kimberly R. Keravuori, OMB, via email [email protected]; and to Nicole Ongele, FCC, via email [email protected] and to [email protected] Include in the comments the OMB control number as shown in the Supplementary Information section below.

    FOR FURTHER INFORMATION CONTACT:

    For additional information or copies of the information collection, contact Nicole Ongele at (202) 418-2991. To view a copy of this information collection request (ICR) submitted to OMB: (1) Go to the Web page http://www.reginfo.gov/public/do/PRAMain, (2) look for the section of the Web page called “Currently Under Review,” (3) click on the downward-pointing arrow in the “Select Agency” box below the “Currently Under Review” heading, (4) select “Federal Communications Commission” from the list of agencies presented in the “Select Agency” box, (5) click the “Submit” button to the right of the “Select Agency” box, (6) when the list of FCC ICRs currently under review appears, look for the OMB control number of this ICR and then click on the ICR Reference Number. A copy of the FCC submission to OMB will be displayed.

    SUPPLEMENTARY INFORMATION:

    OMB Control Number: 3060-XXXX.

    Title: Connect America Fund—High Cost Portal Filing.

    Form Number: N/A.

    Type of Review: New collection.

    Respondents: Business or other for-profit.

    Number of Respondents and Responses: 1,526 unique respondents; 3,595 responses.

    Estimated Time per Response: 8 hours—30 hours.

    Frequency of Response: On occasion, quarterly reporting requirements, annual reporting requirements, one-time reporting requirement and recordkeeping requirement.

    Obligation to Respond: Required to obtain or retain benefits. Statutory authority for this information collection is contained in 47 U.S.C. 151-154, 155, 201-206, 214, 218-220, 251, 252, 254, 256, 303(r), 332, 403, 405, 410, and 1302.

    Total Annual Burden: 65,713 hours.

    Total Annual Cost: No Cost.

    Privacy Act Impact Assessment: No impact(s).

    Nature and Extent of Confidentiality: We note that USAC must preserve the confidentiality of certain data obtained from respondents; must not use the data except for purposes of administering the universal service programs or other purposes specified by the Commission; and must not disclose data in company-specific form unless directed to do so by the Commission. Respondents may request materials or information submitted to the Commission or the Administrator believed confidential to be withheld from public inspection under 47 CFR 0.459 of the FCC's rules.

    Needs and Uses: The Commission is requesting approval for this new information collection. In March 2016, the Commission adopted an order reforming its universal service support program in areas served by rate-of-return carriers. Connect America Fund et al., WC Docket Nos. 10-90 et al., Report and Order, Order and Order on Reconsideration, and Further Notice of Proposed Rulemaking, FCC 16-33 (Rate-of-Return Order). Also, in May 2016, the Commission adopted rules to implement a competitive bidding process for Phase II of the Connect America Fund. Connect America Fund et al., WC Docket Nos. 10-90 et al., Report and Order and Further Notice of Proposed Rulemaking, FCC 16-64 (Phase II Auction Order).

    This information collection addresses the requirement that certain carriers with high cost reporting obligations must file information about their locations which meet their broadband deployment public interest obligations via an electronic portal (“portal”). The Rate-of-Return Order required that the Universal Service Administrative Company (USAC) establish the portal so that carriers could file their location data with the portal starting in 2017. The Rate-of-Return Order required all recipients of Phase II model-based support and rate-of-return carriers to submit geocoded location data and related certifications to the portal. Recipients of Phase II model-based support had been required to file such information in their annual reports due by July 1. The Phase II Auction Order requires auction winners to build-out networks capable of meeting their public interest obligations and report, to an online portal, locations to which auction winners had deployed such networks. This collection also implements the Rate-of-Return Order by moving and revising the currently approved requirements under OMB Control Numbers 3060-1200 and 3060-0986 to enable recipients of Phase II model-based support and rural broadband experiment funding to file their location information and associated reports and certifications in the portal instead of on the FCC Form 481 or as is currently required.

    Federal Communications Commission. Katura Howard, Federal Register Liaison Officer. Office of the Secretary.
    [FR Doc. 2016-31722 Filed 12-29-16; 8:45 am] BILLING CODE 6712-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Agency for Toxic Substances and Disease Registry [60Day-17-17IY; Docket No. ATSDR-2016-0122] Proposed Data Collection Submitted for Public Comment and Recommendations AGENCY:

    Agency for Toxic Substances and Disease Registry (ATSDR), Department of Health and Human Services (HHS).

    ACTION:

    Notice with comment period.

    SUMMARY:

    The Agency for Toxic Substances and Disease Registry (ATSDR), as part of its continuing efforts to reduce public burden and maximize the utility of government information, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995. This notice invites comment on “Biomonitoring of Great Lakes Populations Program III.” The purpose of the proposed study is to evaluate body burden levels of priority contaminants in Great Lakes residents, particularly those who are at high exposure risk, in the Milwaukee Bay Estuary Area of Concern (AOC) area that was not previously addressed in ATSDR's previous biomonitoring programs around the Great Lakes.

    DATES:

    Written comments must be received on or before February 28, 2017.

    ADDRESSES:

    You may submit comments, identified by Docket No. ATSDR-2016-0122 by any of the following methods:

    Federal eRulemaking Portal: Regulations.gov. Follow the instructions for submitting comments.

    Mail: Leroy A. Richardson, Information Collection Review Office, Centers for Disease Control and Prevention, 1600 Clifton Road NE., MS-D74, Atlanta, Georgia 30329.

    Instructions: All submissions received must include the agency name and Docket Number. All relevant comments received will be posted without change to Regulations.gov, including any personal information provided. For access to the docket to read background documents or comments received, go to Regulations.gov.

    Please note: All public comment should be submitted through the Federal eRulemaking portal (Regulations.gov) or by U.S. mail to the address listed above.

    FOR FURTHER INFORMATION CONTACT:

    To request more information on the proposed project or to obtain a copy of the information collection plan and instruments, contact the Information Collection Review Office, Centers for Disease Control and Prevention, 1600 Clifton Road NE., MS-D74, Atlanta, Georgia 30329; phone: 404-639-7570; Email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. In addition, the PRA also requires Federal agencies to provide a 60-day notice in the Federal Register concerning each proposed collection of information, including each new proposed collection, each proposed extension of existing collection of information, and each reinstatement of previously approved information collection before submitting the collection to OMB for approval. To comply with this requirement, we are publishing this notice of a proposed data collection as described below.

    Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology; and (e) estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; to develop, acquire, install and utilize technology and systems for the purpose of collecting, validating and verifying information, processing and maintaining information, and disclosing and providing information; to train personnel and to be able to respond to a collection of information, to search data sources, to complete and review the collection of information; and to transmit or otherwise disclose the information.

    Proposed Project

    Biomonitoring of Great Lakes Populations Program III—New—Agency for Toxic Substances and Disease Registry (ATSDR).

    Background and Brief Description

    The Agency for Toxic Substances and Disease Registry (ATSDR) is requesting a three-year Paperwork Reduction Act (PRA) clearance for a new information collection request (ICR) titled “Biomonitoring of Great Lakes Populations Program III.” ATSDR awarded funds to the Wisconsin Department of Health Services (WIDHS) to conduct this information collection under cooperative agreement #NU61TS000269-01-00. The purpose of the current program is to evaluate body burden levels of legacy and emerging contaminants in susceptible Great Lakes populations in the Milwaukee Estuary Area of Concern (AOC) in Wisconsin, an area that has not been previously covered by other Great Lakes initiatives.

    The Great Lakes Basin has suffered decades of pollution and ecosystem damage. Many chemicals persist in Great Lakes waters and sediments, as well as in wildlife. These chemicals can build up in the aquatic food chain, and eating contaminated fish is a known route of human exposure.

    In 2009, the Great Lakes Restoration Initiative (GLRI) was enacted by Public Law 111-88 to make restoration and protection of the Great Lakes a national priority. The GLRI is led by the U.S. Environmental Protection Agency (US EPA). Under a 2015 interagency agreement with the US EPA, ATSDR initiated the Biomonitoring of Great Lakes Populations Program III program. This project will provide additional public health information to supplement the previous cooperative agreement programs CDC-RFA-TS10-1001 “Biomonitoring of Great Lakes Populations” (hereafter referred to as “Program I,” OMB Control Number 0923-0044) and CDC-RFA-TS13-1302 “Biomonitoring of Great Lakes Populations-II” (hereafter referred to as “Program II,” OMB Control Number 0923-0052) initiated in FY2010 and FY2013, respectively.

    WIDHS received funding for the current program. WIDHS will recruit and enroll two subpopulations of adults in the Milwaukee Bay Estuary Area of Concern (AOC) who are known to eat fish from the Milwaukee River Basin and Lake Michigan. This study will not include pregnant women.

    The target populations are: (1) Licensed anglers living in proximity to the Milwaukee Estuary AOC and (2) Burmese refugees who are known to eat a substantial amount of fish from this area. WIDHS study staff will work closely with local refugee and citizen support organizations on participant recruitment.

    The aims of the information collection in this surveillance project are:

    1. Assess levels of contaminants (metals, polychlorinated biphenyls, chlorinated pesticides, perfluorinated compounds, and polyaromatic hydrocarbons) in blood and urine of residents who consume fish from contaminated areas that had not been studied in previous Programs I and II;

    2. Use the project findings to inform public health officials and offer guidance on public health actions to reduce exposure to Great Lakes contaminants.

    This applied public health program aims to measure contaminants in biological samples (blood, urine and hair) from people who may be at high risk of chemical exposure in the Great Lakes area. These measurements will provide a baseline for current and future restoration activities. The results will be compared to available national estimates, such as those reported by the National Health and Nutrition Examination Survey (NHANES).

    Respondents will be screened for eligibility and consent will be obtained. Participants who consent will respond to a questionnaire and participate in clinic visits for body measurements and biological specimen collection (blood, urine, and hair). Their blood will be tested for polychlorinated biphenyls, metals, perfluorinated compounds, persistent pesticides, and lipids. Urine will be tested for polycyclic aromatic hydrocarbons and creatinine. The hair samples (optional) will be saved for a later analysis.

    Respondents will also be interviewed. They will be asked about demographic and lifestyle factors, hobbies, health conditions that may affect fish consumption and fishing habits, and types of jobs which can contribute to chemical exposure. Some dietary questions will be asked with a focus on consumption of Great Lakes fish.

    Participation in the study is voluntary and there is no cost to respondents other than their time. The estimated annualized burden for the program averaged over the three-year study period is 231 hours among 166 respondents. There is no cost to respondents other than their time spent in the study.

    Estimated Annualized Burden Hours Type of respondents Form name Number of
  • respondents
  • Number of
  • responses per
  • respondent
  • Average
  • burden per
  • response
  • (in hours)
  • Total burden
  • (in hours)
  • Licensed Anglers Eligibility Screening Survey (paper) 156 1 5/60 13 Eligibility Screening Survey (online) 28 1 5/60 2 Study Questionnaire (paper) 58 1 30/60 29 Study Questionnaire (online) 87 1 30/60 44 Clinic Visit Checklist and Body Measurements 133 1 35/60 78 Follow-up Survey 133 1 5/60 11 Burmese Refugees Eligibility Screening Survey 42 1 5/60 4 Contact Information Form 33 1 5/60 3 Study Questionnaire 33 1 40/60 22 Clinic Visit Checklist and Body Measurements 33 1 35/60 19 Network Size Questions 33 1 5/60 3 Follow-up Survey 33 1 5/60 3 Total 231
    Leroy A. Richardson, Chief, Information Collection Review Office, Office of Scientific Integrity, Office of the Associate Director for Science, Office of the Director, Centers for Disease Control and Prevention.
    [FR Doc. 2016-31738 Filed 12-29-16; 8:45 am] BILLING CODE 4163-18-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Centers for Disease Control and Prevention [60Day-17-0576; Docket No. CDC-2016-0125] Proposed Data Collection Submitted for Public Comment and Recommendations AGENCY:

    Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).

    ACTION:

    Notice with comment period.

    SUMMARY:

    The Centers for Disease Control and Prevention (CDC), as part of its continuing effort to reduce public burden and maximize the utility of government information, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995. This notice invites comment on a proposed revision of the CDC information collection project entitled “Possession, Use, and Transfer of Select Agents and Toxins.”

    DATES:

    Written comments must be received on or before February 28, 2017.

    ADDRESSES:

    You may submit comments, identified by Docket No. CDC-2016-0125 by any of the following methods:

    Federal eRulemaking Portal: Regulations.gov. Follow the instructions for submitting comments.

    Mail: Leroy A. Richardson, Information Collection Review Office, Centers for Disease Control and Prevention, 1600 Clifton Road NE., MS-D74, Atlanta, Georgia 30329.

    Instructions: All submissions received must include the agency name and Docket Number. All relevant comments received will be posted without change to Regulations.gov, including any personal information provided. For access to the docket to read background documents or comments received, go to Regulations.gov.

    Please note: All public comments should be submitted through the Federal eRulemaking portal (Regulations.gov) or by U.S. mail to the address listed above.

    FOR FURTHER INFORMATION CONTACT:

    To request more information on the proposed project or to obtain a copy of the information collection plan and instruments, contact the Information Collection Review Office, Centers for Disease Control and Prevention, 1600 Clifton Road NE., MS-D74, Atlanta, Georgia 30329; phone: 404-639-7570; Email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. In addition, the PRA also requires Federal agencies to provide a 60-day notice in the Federal Register concerning each proposed collection of information, including each new proposed collection, each proposed extension of existing collection of information, and each reinstatement of previously approved information collection before submitting the collection to OMB for approval. To comply with this requirement, we are publishing this notice of a proposed data collection as described below.

    Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology; and (e) estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information. Burden is the total time, effort, or financial resources expended by persons to generate, maintain, retain, disclose, or provide information to or for a Federal agency. This includes the time needed to review instructions; to develop, acquire, install and utilize technology and systems for the purpose of collecting, validating and verifying information, processing and maintaining information, and disclosing and providing information; to train personnel to respond to a collection of information, search data sources, and complete and review the collection of information; and to transmit or otherwise disclose the information.

    Proposed Project

    Possession, Use, and Transfer of Select Agents and Toxins (42 CFR 73) (OMB Control No. 0920-0576, exp. 12/31/2018)—Revision—Office of Public Health Preparedness and Response (OPHPR), Centers for Disease Control and Prevention (CDC).

    Background and Brief Description

    Subtitle A of the Public Health Security and Bioterrorism Preparedness and Response Act of 2002, (42 U.S.C. 262a), requires the United States Department of Health and Human Services (HHS) to regulate the possession, use, and transfer of biological agents or toxins that have the potential to pose a severe threat to public health and safety (select agents and toxins). Subtitle B of the Public Health Security and Bioterrorism Preparedness and Response Act of 2002 (which may be cited as the Agricultural Bioterrorism Protection Act of 2002), (7 U.S.C. 8401), requires the United States Department of Agriculture (USDA) to regulate the possession, use, and transfer of biological agents or toxins that have the potential to pose a severe threat to animal or plant health, or animal or plant products (select agents and toxins). The HHS Secretary delegated the responsibility for promulgating and implementing select agent regulations found at 42 CFR part 73 to CDC Division of Select Agents and Toxins (DSAT). The Animal and Plant Health Inspection Service (APHIS)/Agriculture Select Agent Services (AgSAS) was delegated responsibility by USDA for select agent regulations (7 CFR part 331, and 9 CFR part 121). The Federal Select Agent Program (FSAP) is the collaboration of the DSAT and AgSAS to administer the select agent regulations in a manner to minimize the administrative burden on persons subject to the select agent regulations. Accordingly, CDC and APHIS have adopted an identical system to collect information for the possession, use, and transfer of select agents and toxins.

    CDC is requesting OMB approval to revise the collected information under the select agent regulations through the use of the APHIS/CDC Form 3 (Report of Theft, Loss, or Release of Select Agents and Toxins). The Report of Theft, Loss, or Release of Select Agent and Toxin form (42 CFR 73.19(a),(b)) must be completed by an individual or an entity whenever the individual or entity experiences a theft, loss, or release of a select agent or toxin.

    CDC is proposing to revise the form to further clarify what needs to be reported as a “release” and “loss” and additional fields to assist with categorizing the type of release (e.g., spill within secondary containment, occupational exposure, possible breach of facility containment, etc.), type of exposure, and the understanding of safety and security risk levels relative to human illness. Estimated average time to complete this form is one hour.

    The total estimated annualized burden for this collection was calculated using data obtained from the FSAP database and is estimated as 430 hours. Information will be collected via fax, email and hard copy mail from respondents. Upon OMB approval, CDC will continue use of the revised form through November 2018. There is no cost to the respondents.

    Estimated Annualized Burden Hours Type of respondents Form name Number of
  • respondents
  • Number of
  • responses per respondent
  • Average
  • burden per
  • response
  • (in hours)
  • Total burden hours
    73.19 Section Report of Theft, Loss, or Release of Select Agents and Toxins 215 1 2 430 Total 430
    Leroy A. Richardson, Chief, Information Collection Review Office, Office of Scientific Integrity, Office of the Associate Director for Science, Office of the Director, Centers for Disease Control and Prevention.
    [FR Doc. 2016-31739 Filed 12-29-16; 8:45 am] BILLING CODE 4163-18-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Centers for Disease Control and Prevention [60Day-17-1074; Docket No. CDC-2016-0123] Proposed Data Collection Submitted for Public Comment and Recommendations AGENCY:

    Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).

    ACTION:

    Notice with comment period.

    SUMMARY:

    The Centers for Disease Control and Prevention (CDC), as part of its continuing efforts to reduce public burden and maximize the utility of government information, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995. This notice invites comment on the revision of the information collection entitled “Colorectal Cancer Control Program (CRCCP) Monitoring Activities.” The change to the collection will include a redesigned survey and a redesigned clinic-level data collection template.

    DATES:

    Written comments must be received on or before February 28, 2017.

    ADDRESSES:

    You may submit comments, identified by Docket No. CDC-2016-0123 by any of the following methods:

    Federal eRulemaking Portal: Regulations.gov. Follow the instructions for submitting comments.

    Mail: Leroy A. Richardson, Information Collection Review Office, Centers for Disease Control and Prevention, 1600 Clifton Road NE., MS-D74, Atlanta, Georgia 30329.

    Instructions: All submissions received must include the agency name and Docket Number. All relevant comments received will be posted without change to Regulations.gov, including any personal information provided. For access to the docket to read background documents or comments received, go to Regulations.gov.

    Please note: All public comment should be submitted through the Federal eRulemaking portal (Regulations.gov) or by U.S. mail to the address listed above.

    FOR FURTHER INFORMATION CONTACT:

    To request more information on the proposed project or to obtain a copy of the information collection plan and instruments, contact the Information Collection Review Office, Centers for Disease Control and Prevention, 1600 Clifton Road NE., MS-D74, Atlanta, Georgia 30329; phone: 404-639-7570; Email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. In addition, the PRA also requires Federal agencies to provide a 60-day notice in the Federal Register concerning each proposed collection of information, including each new proposed collection, each proposed extension of existing collection of information, and each reinstatement of previously approved information collection before submitting the collection to OMB for approval. To comply with this requirement, we are publishing this notice of a proposed data collection as described below.

    Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology; and (e) estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; to develop, acquire, install and utilize technology and systems for the purpose of collecting, validating and verifying information, processing and maintaining information, and disclosing and providing information; to train personnel and to be able to respond to a collection of information, to search data sources, to complete and review the collection of information; and to transmit or otherwise disclose the information.

    Proposed Project

    Colorectal Cancer Control Program (CRCCP) Monitoring Activities—(OMB Control No. 0920-1074, exp. 6/30/2018)—Revision—National Center for Chronic Disease Prevention and Health Promotion (NCCDPHP), Centers for Disease Control and Prevention (CDC).

    Background and Brief Description

    CDC is requesting a revision of the information collection approved under OMB Control Number 0920-1074. Based on feedback from grantees and internal subject matter experts, CDC proposes use of a revised annual grantee survey instrument, as well as a revised clinic-level data collection template. The number of respondents will also decrease from 31 to 30 grantees. Total estimated annualized burden will decrease. OMB approval is requested for three years.

    Colorectal cancer (CRC) is the second leading cause of death from cancer in the United States among cancers that affect both men and women. CRC screening has been shown to reduce incidence of and death from the disease. Screening for CRC can detect disease early when treatment is more effective and prevent cancer by finding and removing precancerous polyps. Of individuals diagnosed with early stage CRC, more than 90% live five or more years. Despite strong evidence supporting screening, only 65% of adults currently report being up-to-date with CRC screening as recommended by the U.S. Preventive Services Task Force, with more than 22 million age-eligible adults estimated to be untested. To reduce CRC morbidity, mortality, and associated costs, use of CRC screening tests must be increased among age-eligible adults with the lowest CRC screening rates.

    CDC's Colorectal Cancer Control Program (CRCCP) currently provides funding to 30 grantees under “Organized Approaches to Increase Colorectal Cancer Screening” (CDC-RFA-DP15-1502). CRCCP grantees include state governments or bona-fide agents, universities, and tribal organizations. The purpose of the cooperative agreement program is to increase CRC screening rates among an applicant defined target population of persons 50-75 years of age within a partner health system serving a defined geographical area or disparate population. The CDC significantly redesigned the CRCCP in 2015. The CRCCP has two components.

    Component 1: Funding for component 1 is limited to partnerships with health systems to implement up to four priority evidence-based interventions (EBIs) described in the Guide to Community Preventive Services as well as other supporting strategies. Grantees must implement at least two EBIs in each partnering health system. All 30 CRCCP grantees received Component 1 funding.

    Component 2: Funding for component 2 is used by grantees to provide direct screening and follow-up clinical services for a limited number of individuals aged 50-64 in the program's priority population who are asymptomatic, at average risk for CRC, have inadequate or no health insurance for CRC screening, and are low income. Six of the 30 CRCCP grantees received Component 2 funding.

    Two forms of data collection have been implemented to assess program processes and outcomes. In Program Year 1, the annual grantee survey monitored grantee program implementation, including (1) program management, (2) implementation of the EBIs and Supporting Activities (SAs) (3) health information technology (IT), (4) partnerships, (5) data use, (6) training and technical assistance (TA), and (7) clinical service delivery (for programs receiving Component 2 funding only). Clinic-level data collection assessed CRCCP's primary outcome of interest—CRC screening rates within partner health systems—by measuring the following components: (1) Partner health system, clinic, and patient population characteristics, (2) reporting period (for screening rates), (3) Chart review screening rate data, (4) Electronic Health Record (EHR) screening rate, and (5) Priority evidence-based EBIs and SAs. CRCCP grantees collected and reported CRCCP clinic-level information for all partnering health system primary care clinic sites.

    For Program Years 2-5, based on feedback from grantees, CDC proposes use of updated data collection instruments. Specifically, CDC plans to implement a revised CRCCP annual grantee survey that eliminates survey items related to implementation of EBIs and SAs as these data are more accurately reported at the clinic level. Conversely, CDC plans to implement a revised CRCCP clinic-level data collection template that includes additional data variables related to implementation of EBIs and SAs, as well as monitoring and evaluation activities, at the clinic level.

    Redesigned data elements will enable CDC to better gauge progress in meeting CRCCP program goals and monitor implementation activities, evaluate outcomes, and identify grantee technical assistance needs. In addition, data collected will inform program improvement and help identify successful activities that need to be maintained, replicated, or expanded.

    OMB approval is requested for three years. The number of grantees decreased from 31 grantees in program year one to 30 grantees in program year two. In addition, the total estimated annualized burden hours have decreased from 210 to 204 hours. There are no costs to respondents other than their time.

    Estimated Annualized Burden Hours Type of respondent Form name Number of
  • respondents
  • Number of
  • responses per respondent
  • Average
  • burden per
  • response
  • (in hours)
  • Total burden
  • (in hours)
  • CRCCP Grantees CRCCP Annual Grantee Survey 30 1 24/60 12 CRCCP Clinic-level Information Collection Template 30 12 32/60 192 Total 204
    Leroy A. Richardson, Chief, Information Collection Review Office, Office of Scientific Integrity, Office of the Associate Director for Science, Office of the Director, Centers for Disease Control and Prevention.
    [FR Doc. 2016-31740 Filed 12-29-16; 8:45 am] BILLING CODE 4163-18-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Centers for Disease Control and Prevention Electronic Filing of Certain Import Data Into the Document Image System Through the Automated Commercial Environment AGENCY:

    Centers for Disease Control and Prevention, Department of Health and Human Services.

    ACTION:

    Notice.

    SUMMARY:

    Through publication of this notice, the Centers for Disease Control and Prevention (CDC) located within the Department of Health and Human Services (HHS) announces a new policy and guidance for the electronic submission of data related to the importation of CDC-regulated items in the International Trade Data System (ITDS). Certain data, forms, and documents required to be submitted to HHS/CDC will be submitted through the U.S. Customs and Border Protection (CBP)'s Automated Commercial Environment (ACE) system, using the Document Image System (DIS). This electronic process will replace certain paper-based processes in keeping with Federal policy and improve operations to further assist HHS/CDC's mission to protect public health.

    DATES:

    This action is effective December 30, 2016.

    FOR FURTHER INFORMATION CONTACT:

    For information regarding this Notice: Ashley A. Marrone, J.D., Division of Global Migration and Quarantine, Centers for Disease Control and Prevention, 1600 Clifton Road NE., MS-E03, Atlanta, GA 30329. For information regarding CDC operations related to this Notice: Kendra Stauffer, D.V.M., Division of Global Migration and Quarantine, Quarantine and Border Health Services Branch, Importations and Animal Contact Team, Centers for Disease Control and Prevention, 1600 Clifton Road NE., MS-E28, Atlanta, GA 30345. Either may also be reached by telephone 404-498-1600 or email [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Background

    On February 19, 2014, the President signed Executive Order 13659, Streamlining the Export/Import Process for America's Businesses (79 FR 10655), that requires the completion and government-wide utilization by December 31, 2016 of the International Trade Data System (ITDS) and establishes a two-tiered governance process to oversee its implementation. Once fully implemented, ITDS, through the Automated Commercial Environment (ACE), will allow importers to submit the data required by U.S. Customs and Border Protection and its Partner Government Agencies (PGAs) relating to the import or export of cargo through a “single window” concept. CBP has developed ACE as the single window for the trade community to transmit electronically all required cargo-related information.

    This notice announces HHS/CDC's updated policy concerning the electronic transmission of HHS/CDC permits, forms, and documents using CBP's Document Image System (DIS). This DIS capability will satisfy the HHS/CDC data and electronic document requirements for any entry filed electronically in ACE and enable the trade community to have a CBP-managed single window for the electronic submission of data and documents required by HHS/CDC during the cargo importation and review process. The list of PGA forms and documents, including documents required by HHS/CDC, which may be transmitted using DIS may be found at http://www.cbp.gov/trade/ace/features under the DIS tab by clicking on the “ACE PGA Forms List” hyperlink in the “References” column. The HHS/CDC permits, forms, and documents listed in the ACE PGA Forms List are those eligible to be transmitted using DIS.

    II. Current HHS/CDC Paper-Based Procedures

    Under current applicable HHS/CDC policy and operations, the importation of HHS/CDC-regulated commodities into the customs territory of the United States typically requires the submission of one or more of the following documents:

    (1) Animal and Plant Health Inspection Service (APHIS)/CDC Form 2—Request to Transfer Select Agents and Toxins (42 CFR 73);

    (2) CDC Form 0.0728—Permit to Import or Transfer Etiologic Agents or Vectors of Human Disease (42 CFR 71.54);

    (3) Rabies Vaccination Certificate (42 CFR 71.51);

    (4) CDC Approval of Confinement Agreement Issuance Letter (42 CFR 71.51);

    (5) CDC Permission Letter—Permit to Import African Rodents, Civets, or Turtles (42 CFR 71.56, 42 CFR 71.32(b), 42 CFR 71.52);

    (6) CDC Nonhuman Primate Notification Message—Confirmation from CDC to the importer that CDC has given permission to import the nonhuman primate shipment (42 CFR 71.53); and

    (7) Certification statement of a material that is not known to contain or suspected of containing an infectious biological agent, or has been rendered noninfectious (42 CFR 71.54).

    Under the new policy, for those HHS/CDC items filed within ACE, individuals will continue to use the designated HHS/CDC application and filing processes; however, the processes will be electronic rather than paper-based.

    III. Implementation of E.O. 13659

    Under this new Federal policy, which HHS/CDC has adopted, importers and brokers who file electronic entries for HHS/CDC-regulated items are now required to:

    • Obtain the copy of the permit/permission letter, form, or document for submission to DIS:

    (1) The APHIS/CDC Form 2, Request to Transfer Select Agents and Toxins, is used by entities to request prior authorization of a transfer including importation into the United States of select agent(s) or toxin(s) from the Federal Select Agent Program as required by regulations (7 CFR 331, 9 CFR 121, and 42 CFR 73). The form is available at: http://www.selectagents.gov/form2.html.

    (2) CDC Form 0.0728—Permit to Import or Transfer Etiologic Agents or Vectors of Human Disease: http://www.cdc.gov/od/eaipp/index.htm. For infectious biological agents, infectious substances, and vectors of human disease, importers must have a permit from HHS/CDC's Import Permit Program.

    (3) A rabies vaccination certificate for a dog must be issued by a licensed veterinarian.

    (4) and (5) For certain animals and animal products capable of causing human disease, you must have a permit or letter of permission. See https://www.cdc.gov/importation/bringing-an-animal-into-the-united-states/index.html. Email inquiries about these importations to [email protected] Note that CDC is transitioning to the CDC Import Permit for a Dog not immunized against Rabies during the first quarter of 2017. Permits will be issued using an online application process.

    (6) Only registered importers may bring nonhuman primates into the United States. HHS/CDC emails this approval to the broker after receiving notification of an incoming shipment by a registered importer. For information on how to become a registered importer, see http://www.cdc.gov/importation/bringing-an-animal-into-the-united-states/monkeys.html. The HHS/CDC Nonhuman Primate Notification Message is automatically generated when a registered importer notifies HHS/CDC of an incoming shipment.

    (7) For material that is not known to contain or suspected of containing an infectious biological agent, or has been rendered noninfectious, importers must provide an importer certification statement with the imported material. The certification statement must include a detailed description of the material and a statement on official letterhead signed by the sender or recipient clearly stating that (1) the material is not known or suspected to contain an infectious biological agent and (2) how the person making the certification knows that the specimen does not contain an infectious biological agent; or why that person believes there is no reason to suspect that the specimen contains an infectious biological agent; or a detailed description of how the material was rendered noninfectious. For more information, see the Import Regulations for Infectious Biological Agents, Infectious Substances and Vectors at http://www.cdc.gov/phpr/ipp/regulations.htm.

    • Follow all applicable rules for obtaining and certifying DIS software as set forth by CBP. For more information, see https://www.cbp.gov/trade/automated/systems.

    • Transmit import filings to CBP via ACE.

    • Transmit only information to CBP that has been requested by CBP or CDC.

    • Check CDC's Importation Web site http://www.cdc.gov/importation/index.html regularly for updated guidance for electronic filing.

    The following processes will remain as paper-based submissions:

    A. Human remains for interment or cremation after entering the United States will not have an electronic entry within ACE. The required paper-based documents must continue to accompany the human remains, including those required by 42 CFR 71.55. For more information, see http://www.cdc.gov/quarantine/human-remains.html.

    B. Form 75.37—“Notice to Owners and Importers of Dogs (Requirement for Dog Confinement)” Dogs imported into the United States are expected to be healthy and vaccinated against rabies. There is no requirement to have this information electronically available within ACE. CBP issues a notice to owners and importers post-arrival only when dogs arrive in the U.S. port of entry without the required vaccination, meet certain criteria, and have been preapproved by HHS/CDC. For more information, visit the CDC Web page for how to bring an animal into the United States at http://www.cdc.gov/importation/bringing-an-animal-into-the-united-states/dogs.html.

    For more information on this policy and updates or changes to the forms eligible for electronic submission, please see http://www.cdc.gov/importation/index.html.

    IV. Paperwork Reduction Act

    This change does not institute a new collection of information. The collection of information, including the use of the DIS, has been previously approved by the Office of Management and Budget (OMB) in accordance with the requirements of the Paperwork Reduction Act (44 U.S.C. 3507) and assigned the following OMB control numbers: (1) Foreign Quarantine: OMB Control No. 0920-0134, expiration date 5/31/2019; (2) Import Permit Applications: OMB Control No. 0920-0199, expiration date 1/31/2017; (3) Requirements for the Importation of Nonhuman Primates into the United States: OMB Control No. 0920-0263, expiration date 9/30/2017; and (4) Possession, Use, and Transfer of Select Agents and Toxins: OMB Control No. 0920-0576, expiration date 12/31/18.

    Dated: December 27, 2016. Lauren Hoffmann, Acting Executive Secretary, Centers for Disease Control and Prevention.
    [FR Doc. 2016-31750 Filed 12-29-16; 8:45 am] BILLING CODE 4163-18-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Centers for Disease Control and Prevention [60Day-17-17IX; Docket No. CDC-2016-0124] Proposed Data Collection Submitted for Public Comment and Recommendations AGENCY:

    Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).

    ACTION:

    Notice with comment period.

    SUMMARY:

    The Centers for Disease Control and Prevention (CDC), as part of its continuing efforts to reduce public burden and maximize the utility of government information, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995. This notice invites comment on a proposed information collection project entitled “Assessment of Interventions Intended to Protect Pregnant Women in Puerto Rico from Zika Infections.” This project consists of telephone interviews with pregnant WIC participants in Puerto Rico.

    DATES:

    Written comments must be received on or before February 28, 2017.

    ADDRESSES:

    You may submit comments, identified by Docket No. CDC-2016-0124 by any of the following methods:

    Federal eRulemaking Portal: Regulations.gov. Follow the instructions for submitting comments.

    Mail: Leroy A. Richardson, Information Collection Review Office, Centers for Disease Control and Prevention, 1600 Clifton Road NE., MS-D74, Atlanta, Georgia 30329.

    Instructions: All submissions received must include the agency name and Docket Number. All relevant comments received will be posted without change to Regulations.gov, including any personal information provided. For access to the docket to read background documents or comments received, go to Regulations.gov.

    Please note: All public comment should be submitted through the Federal eRulemaking portal (Regulations.gov) or by U.S. mail to the address listed above.

    FOR FURTHER INFORMATION CONTACT:

    To request more information on the proposed project or to obtain a copy of the information collection plan and instruments, contact the Information Collection Review Office, Centers for Disease Control and Prevention, 1600 Clifton Road NE., MS-D74, Atlanta, Georgia 30329; phone: 404-639-7570; Email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. In addition, the PRA also requires Federal agencies to provide a 60-day notice in the Federal Register concerning each proposed collection of information, including each new proposed collection, each proposed extension of existing collection of information, and each reinstatement of previously approved information collection before submitting the collection to OMB for approval. To comply with this requirement, we are publishing this notice of a proposed data collection as described below.

    Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology; and (e) estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; to develop, acquire, install and utilize technology and systems for the purpose of collecting, validating and verifying information, processing and maintaining information, and disclosing and providing information; to train personnel and to be able to respond to a collection of information, to search data sources, to complete and review the collection of information; and to transmit or otherwise disclose the information.

    Proposed Project

    Assessment of Interventions Intended to Protect Pregnant Women in Puerto Rico from Zika Infections—New—National Center for Emerging and Zoonotic Infectious Diseases (NCEZID), Centers for Disease Control and Prevention (CDC).

    Background and Brief Description

    CDC proposes to continue the information collection initially cleared by OMB as an emergency ICR in June, 2016 (OMB Control No. 0920-1118). The expiration date for 0920-1118 is December 31, 2016. However, CDC intends to continue information collection for an additional nine months and is seeking OMB clearance to do so.

    In December 2015, the Commonwealth of Puerto Rico, a United States territory, reported its first confirmed locally transmitted Zika virus case.

    Starting in March 2016, The Centers for Disease Control and Prevention's (CDC) National Center for Emerging and Zoonotic Infections Diseases (NCEZID) initiated several interventions targeting pregnant women. The ultimate goal of these interventions is/was to protect pregnant women from Zika virus and encourage Zika prevention behaviors among pregnant women. The interventions include the following:

    1. Zika Education Sessions (at WIC clinics;

    2. Zika Prevention Kits;

    3. Communication activities; and

    4. Vector control services in the community.

    This ICR is for data collection over the next nine months related to Zika prevention efforts that have been and will be implemented in Puerto Rico. Specifically, CDC needs this assessment to ensure that Zika prevention activities effectively educate, equip, and encourage women to participate in as many Zika prevention behaviors as possible. On-going evaluation is an important part of this program because it can reveal novel ways that women protect themselves from Zika, how effective the distribution of the Zika Prevention Kit has been in Puerto Rico, perceived severity and susceptibility to Zika, pregnant women's self-efficacy in protecting themselves from Zika after the interventions have been implemented, as well as the extent to which target populations are using contents of the Zika Prevention Kit.

    Interviews with pregnant women in Puerto Rico can help articulate motivations for and against engaging in Zika prevention behaviors that are critical for preventing Zika-associated birth defects and morbidities. Implementing changes based on results from this assessment is expected to facilitate program improvement and ensure the most efficient allocation of resources for this public health emergency. The goal of this project is to find out if interventions are reaching pregnant women and having the intended effects along with getting feedback from pregnant women about the Zika prevention activities that have been implemented (e.g., Zika education sessions and prevention kits, vector control activities, and communication activities).

    Findings will be used to improve the delivery of interventions and to inform decisions about future Zika prevention activities for pregnant women in Puerto Rico. The plan is to conduct up to 500 telephone interviews every two months over a 9-month period, (a total of four rounds), analyze the data, and generate a report for leaders of the response to offer insights on the delivery of interventions to pregnant women. The information will be used to make recommendations for improving interventions. Information may also be used to develop presentations, reports, and manuscripts to document the program and lessons learned in order to inform future programs of this sort.

    The purpose of this assessment is also to assess core components of CDC's Zika response in communicating prevention behaviors, risk messages to the public about vector control activities, and the Zika Prevention kit.

    The following factors will be assessed:

    • Knowledge about Zika virus and related prevention behaviors • Self-efficacy in engaging in Zika prevention behaviors • Engagement in Zika prevention behaviors (e.g., protective clothing use, condom use, and bed net use) • Knowledge about, attitudes about, and use of the Zika Prevention Kit materials • Knowledge about, attitudes about, and use of environmental vector control activities • Risk perceptions of Zika • Exposures to communications along with other factors that may be important considerations in their taking action or not (e.g., does their house have screens, etc.)

    CDC will conduct telephone interviews with a mix of closed-ended and open-ended questions with pregnant women. We estimate 2,000 pregnant women will participate in the project over a nine month period.

    Another component of this project is to conduct qualitative inquiry to explore emerging issues related to vector control, sexual transmission, contraception, mental health/emotional support, service/support needs of families with babies affected by Zika, or vaccine communications (if applicable). While pregnant women will be the main focus of most inquiry, other audiences could include community leaders, community members, and health care providers. The goal is to identify specific unmet needs, which can then be shared with the Department of Health and other human service agencies. The plan is to hold up to 7 focus groups (with up to 10 persons each), or up to 20 in-depth individual interviews or up to 75 brief intercept interviews. A maximum of 75 individuals would participate in this part.

    Results of this project will have limited generalizability. However, results of this evaluation should provide information that can be used to enhance and revise the existing program as well as offer lessons learned to inform infectious disease control programs that use education materials.

    Authorizing legislation comes from Section 301 of the Public Health Service Act (42 U.S.C. 241). There is no cost to respondents other than their time to participate.

    Estimated Annualized Burden Hours Type of respondents Form name Number of
  • respondents
  • Number of
  • responses per
  • respondent
  • Average
  • burden per
  • response
  • (in hrs.)
  • Total burden
  • (in hrs.)
  • Pregnant WIC participant Initial Telephone Interview 2,000 1 20/60 667 WIC participants, other families affected by Zika Focus group 70 1 120/60 140 WIC participants, other families In-depth Interviews 20 1 60/60 20 General population in Zika affected neighborhood Brief intercept interview 75 1 10/60 13 Total 840
    Leroy A. Richardson, Chief, Information Collection Review Office, Office of Scientific Integrity, Office of the Associate Director for Science, Office of the Director, Centers for Disease Control and Prevention.
    [FR Doc. 2016-31737 Filed 12-29-16; 8:45 am] BILLING CODE 4163-18-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration [Docket No. FDA-2013-N-1155] Agency Information Collection Activities; Proposed Collection; Comment Request; Food Labeling Regulations AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Notice.

    SUMMARY:

    The Food and Drug Administration (FDA or we) is announcing an opportunity for public comment on the proposed collection of certain information by the Agency. Under the Paperwork Reduction Act of 1995 (the PRA), Federal Agencies are required to publish notice in the Federal Register concerning each proposed collection of information, including each proposed extension of an existing collection of information, and to allow 60 days for public comment in response to the notice. This notice solicits comments on the information collection provisions of our food labeling regulations and on Form FDA 3570, Model Small Business Nutrition Labeling Exemption Notice, which small businesses may use to claim the small business exemption from nutrition labeling.

    DATES:

    Submit either electronic or written comments on the collection of information by February 28, 2017.

    ADDRESSES:

    You may submit comments as follows:

    Electronic Submissions

    Submit electronic comments in the following way:

    Federal eRulemaking Portal: https://www.regulations.gov. Follow the instructions for submitting comments. Comments submitted electronically, including attachments, to https://www.regulations.gov will be posted to the docket unchanged. Because your comment will be made public, you are solely responsible for ensuring that your comment does not include any confidential information that you or a third party may not wish to be posted, such as medical information, your or anyone else's Social Security number, or confidential business information, such as a manufacturing process. Please note that if you include your name, contact information, or other information that identifies you in the body of your comments, that information will be posted on https://www.regulations.gov.

    • If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).

    Written/Paper Submissions

    Submit written/paper submissions as follows:

    Mail/Hand delivery/Courier (for written/paper submissions): Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

    • For written/paper comments submitted to the Division of Dockets Management, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”

    Instructions: All submissions received must include the Docket No. FDA-2013-N-1155 for “Agency Information Collection Activities; Proposed Collection; Comment Request; Food Labeling Regulations.” Received comments will be placed in the docket and, except for those submitted as “Confidential Submissions,” publicly viewable at https://www.regulations.gov or at the Division of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday.

    • Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on https://www.regulations.gov. Submit both copies to the Division of Dockets Management. If you do not wish your name and contact information to be made publicly available, you can provide this information on the cover sheet and not in the body of your comments and you must identify this information as “confidential.” Any information marked as “confidential” will not be disclosed except in accordance with 21 CFR 10.20 and other applicable disclosure law. For more information about FDA's posting of comments to public dockets, see 80 FR 56469, September 18, 2015, or access the information at: http://www.fda.gov/regulatoryinformation/dockets/default.htm.

    Docket: For access to the docket to read background documents or the electronic and written/paper comments received, go to https://www.regulations.gov and insert the docket number, found in brackets in the heading of this document, into the “Search” box and follow the prompts and/or go to the Division of Dockets Management, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

    FOR FURTHER INFORMATION CONTACT:

    FDA PRA Staff, Office of Operations, Food and Drug Administration, Three White Flint North, 10A63, 11601 Landsdown St., North Bethesda, MD 20852, [email protected]

    SUPPLEMENTARY INFORMATION:

    Under the PRA (44 U.S.C. 3501-3520), Federal Agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes Agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal Agencies to provide a 60-day notice in the Federal Register concerning each proposed collection of information, including each proposed extension of an existing collection of information, before submitting the collection to OMB for approval. To comply with this requirement, FDA is publishing notice of the proposed collection of information set forth in this document.

    With respect to the following collection of information, FDA invites comments on these topics: (1) Whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.

    Food Labeling Regulations—21 CFR Parts 101, 102, 104, and 105; OMB Control Number 0910-0381—Extension

    Our food labeling regulations require food producers to disclose to consumers and others specific information about themselves or their products on the label or labeling of their products. Related regulations require that food producers retain records establishing the basis for the information contained in the label or labeling of their products and provide those records to regulatory officials. Finally, certain regulations provide for the submission of food labeling petitions to us. We issued our food labeling regulations under parts 101, 102, 104, and 105 (21 CFR parts 101, 102, 104, and 105) under the authority of sections 4, 5, and 6 of the Fair Packaging and Labeling Act (the FPLA) (15 U.S.C. 1453, 1454, and 1455) and sections 201, 301, 402, 403, 409, 411, 701, and 721 of the Federal Food, Drug, and Cosmetic Act (the FD&C Act) (21 U.S.C. 321, 331, 342, 343, 348, 350, 371, and 379e). Most of these regulations derive from section 403 of the FD&C Act, which provides that a food product shall be deemed to be misbranded if, among other things, its label or labeling fails to bear certain required information concerning the food product, is false or misleading in any particular, or bears certain types of unauthorized claims. The disclosure requirements and other collections of information in the regulations in parts 101, 102, 104, and 105 are necessary to ensure that food products produced or sold in the United States are in compliance with the labeling provisions of the FD&C Act and the FPLA.

    Section 101.3 of our food labeling regulations requires that the label of a food product in packaged form bear a statement of identity (i.e., the name of the product), including, as appropriate, the form of the food or the name of the food imitated. Section 101.4 prescribes requirements for the declaration of ingredients on the label or labeling of food products in packaged form. Section 101.5 requires that the label of a food product in packaged form specify the name and place of business of the manufacturer, packer, or distributor and, if the food producer is not the manufacturer of the food product, its connection with the food product. Section 101.9 requires that nutrition information be provided for all food products intended for human consumption and offered for sale, unless an exemption in § 101.9(j) applies to the product. In particular, § 101.9(c)(2)(ii) requires that the amount of trans fatty acids present in a food must be declared on the nutrition label on a separate line immediately under the line for the declaration of saturated fat. Section 101.9(g)(9) provides that interested parties may submit to us requests for alternative approaches to nutrition labeling requirements. Finally, § 101.9(j)(18) provides that firms claiming the small business exemption from nutrition labeling must submit notice to us supporting their claim exemption. We developed Form FDA 3570 to assist small businesses in claiming the small business exemption from nutrition labeling. The form contains all the elements required by § 101.9(j)(18).

    Section 101.10 requires that restaurants provide nutrition information, upon request, for any food or meal for which a nutrient content claim or health claim is made. Section 101.12(b) provides the reference amount that is used for determining the serving sizes for specific products, including baking powder, baking soda, and pectin. Section 101.12(e) provides that a manufacturer that adjusts the reference amount customarily consumed (RACC) of an aerated food for the difference in density of the aerated food relative to the density of the appropriate nonaerated reference food must be prepared to show us detailed protocols and records of all data that were used to determine the density-adjusted RACC. Section 101.12(g) requires that the label or labeling of a food product disclose the serving size that is the basis for a claim made for the product if the serving size on which the claim is based differs from the RACC. Section 101.12(h) provides for the submission of petitions requesting that we change the reference amounts defined by regulation.

    Section 101.13 requires that nutrition information be provided in accordance with § 101.9 for any food product for which a nutrient content claim is made. Under some circumstances, § 101.13 also requires the disclosure of other types of information as a condition for the use of a nutrient content claim. For example, under § 101.13(j), if the claim compares the level of a nutrient in the food with the level of the same nutrient in another “reference” food, the claim must also disclose the identity of the reference food, the amount of the nutrient in each food, and the percentage or fractional amount by which the amount of the nutrient in the labeled food differs from the amount of the nutrient in the reference food. It also requires that when this comparison is based on an average of food products, this information must be provided to consumers or regulatory officials upon request. Section 101.13(q)(5) requires that restaurants document and provide to appropriate regulatory officials, upon request, the basis for any nutrient content claims they have made for the foods they sell.

    Section 101.14(d)(2) and (d)(3) provides for the disclosure of nutrition information in accordance with § 101.9 and, under some circumstances, certain other information as a condition for making a health claim for a food product. Section 101.15 provides that, if the label of a food product contains any representation in a foreign language, all words, statements, and other information required by or under authority of the FD&C Act to appear on the label must appear in both the foreign language and in English. Section 101.22 contains labeling requirements for the disclosure of spices, flavorings, colorings, and chemical preservatives in food products. Section 101.22(i)(4) sets forth disclosure and recordkeeping requirements pertaining to certifications for flavors designated as containing no artificial flavors. Section 101.30 specifies the conditions under which a beverage that purports to contain any fruit or vegetable juice must declare the percentage of juice present in the beverage and the manner in which the declaration is to be made.

    Section 101.36 requires that nutrition information be provided for dietary supplements offered for sale, unless an exemption in § 101.36(h) applies. In particular, § 101.36(b)(2) requires that the amount of trans fatty acids present in dietary supplements must be declared on the nutrition label on a separate line immediately under the line for the declaration of saturated fat. Section 101.36(e) permits the voluntary declaration of the quantitative amount and the percent of Daily Value of a dietary ingredient on a “per day” basis in addition to the required “per serving” basis, if a dietary supplement label recommends that the dietary supplement be consumed more than once per day. Section 101.36(f)(2) cross-references the provisions in § 101.9(g)(9) for the submission to us of requests for alternative approaches to nutrition labeling requirements. Also, § 101.36(h)(2) cross-references the provisions in § 101.9(j)(18) for the submission of small business exemption notices. As noted previously, we developed Form FDA 3570 to assist small businesses in claiming the small business exemption from nutrition labeling. The form contains all the elements required by § 101.36(h)(2).

    Section 101.42 requests that food retailers voluntarily provide nutrition information for raw fruits, vegetables, and fish at the point of purchase, and § 101.45 contains guidelines for providing such information. Also, § 101.45(c) provides for the submission to us of nutrient databases and proposed nutrition labeling values for raw fruit, vegetables, and fish for review and approval.

    Sections 101.54, 101.56, 101.60, 101.61, and 101.62 specify information that must be disclosed as a condition for making particular nutrient content claims. Section 101.67 provides for the use of nutrient content claims for butter, and cross-references requirements in other regulations for information declaration (§ 101.4) and disclosure of information concerning performance characteristics (§ 101.13(d)). Section 101.69 provides for the submission of a petition requesting that we authorize a particular nutrient content claim by regulation. Section 101.70 provides for the submission of a petition requesting that we authorize a particular health claim by regulation. Section 101.77(c)(2)(ii)(D) requires the disclosure of soluble fiber per serving in the nutrition labeling of a food bearing a health claim about the relationship between soluble fiber and a reduced risk of coronary heart disease. Section 101.79(c)(2)(iv) requires the disclosure of the amount of folate in the nutrition label of a food bearing a health claim about the relationship between folate and a reduced risk of neural tube defects.

    Section 101.100(d) provides that any agreement that forms the basis for an exemption from the labeling requirements of section 403(c), (e), (g), (h), (i), (k), and (q) of the FD&C Act be in writi